Exercise 1. Read the text and be ready to discuss the details.

Части 1 и 2.

Автор: _________ Смольянникова И.А.

Москва 2010

Модуль имеет своей целью развитие элементов профессиональной иноязычной коммуникативной компетенции, соответствующих уровню С1 по общеевропейской шкале, у студентов, обучающихся по специальности Юриспруденция. Материал предназначен для изучения на пятом курсе в рамках дисциплины Практический курс первого/второго иностранного языка. Тексты и задания к ним подобраны таким образом, чтобы на основе сопоставления с правовым регулированием аналогичной сферы, принятом в Российской Федерации, у обучающихся формировались социокультурная, социолингвистическая, социальная и др. компетенции, которые способствуют успешной межкультурной коммуникации в профессиональной области.

Значительное количество заданий нацелено на развитие конструктивной и технологической компетенций, умений автономной учебной деятельности. В пособии широко применяются принципы сознательности и опоры на имеющиеся умения и знания, включая знания о Российской правовой системе и правовых обычаев, предпринята попытка реализовать проблемный подход к обучению. Значительное место отводится автономной работе студентов (в рамках пособия на 38 аудиторных часов приходится 56 часов внеаудиторной работы). Структура пособия позволяет сделать этот процесс управляемым.

CONTENTS

PART 1.

UNIT 1. What is Administrative Law About?...........................…………….4

UNIT 2. The role of administrative law: authority and value..........……....12

UNIT 3. Administrative justice: the institutional framework……………...24

UNIT 4. Ombudsman and other complaint handling bodies…………...…36

UNIT 5. Overview of the administrative justice system...…………...……..47

PART 2.

REVISION……………………………………………………………………60

TEXTS for SELF STUDY

The Case for Judicial Review ………………………………………….….…64

Tragic choice and the role of administrative law…………………………….66

Marbury vs. Madison (1803) Case……………………………………………71

BIBLIOGRAPHY……………………………………………………………...82

EXTERNAL LINKS………………………...…………………………………82

UNIT 1

What is Administrative Law About?

Exercise 1. Read the text and be ready to discuss the details.

After Peter Cane

There is no universally accepted definition of what is meant by 'administrative law'. If you look at the main textbooks on the subject you will find that although quite a few topics are dealt with in all of them, there are some that are covered in one but not in another, that the common topics are organized in different ways from one book to another, and that they are discussed at different lengths by the various authors. You may also notice amongst the authors different approaches to what administrative law is about. Questions such as 'what should administrative lawyers do? ' have been the subject of sometimes-acrimonious debates amongst scholars.

Along with constitutional law, many people think of administrative law as part of 'public law'. This twofold division of public law (into constitutional and administrative law) is of no great significance. It is really just a matter of focus. Whereas constitutional law is concerned with the public domain in general, administrative law focuses on the day-to-day handling of public affairs particularly, but by no means exclusively, by what we call 'the executive branch of government' — i.e. ministers, government departments, executive agencies, local government, and so on. The qualification ('by no means exclusively') is very important, and it needs explanation.

In Britain, administrative law emerged as a distinct subject of study in the latter half of the twentieth century. The first edition of S.A. De Smith's Judicial Review of Administrative Action was published in 1959 and the first edition of H.W.R. Wade's Administrative Law was published in 1961. An important feature of these books was that rather than being organized around the functions of government—such as the provision of housing and social security, or the regulation of immigration and occupational health and safety—they focused on 'general principles' governing the exercise of governmental powers, such as the rules of natural justice and doctrine of ultra vires. Studying government in what is sometimes called a 'sectoral' way inevitably involves focusing on relevant legislation and its day-to-day implementation by administrators. In contrast, the 'general principles' approach to administrative law is primarily court-focused. The general principles in question were made by judges, and they are primarily concerned not with the legislative framework and implementation of government programmes, but rather with the legal accountability of the agencies that run such programmes. In the 1980s, a new brand of non-sectoral scholarship emerged dealing with 'regulation'. Regulation research is concerned at least as much with legislative frameworks and implementation of regulation as with accountability of regulators. One important topic that receives much attention in the regulatory literature is rule-making. This emphasis on rule-making reflects concern with legislative frameworks and implementation of regulation as opposed to the accountability of regulators.

Within the space of about twenty years there was a fundamental change in the way the province of administrative law and judicial review was defined. In that time, the focus shifted from controlling the institutions of (central and local) government to controlling the exercise of functions of governance (whatever they may be) whether performed by government or non-government entities. The boundaries of administrative law are set by a messy combination of functional and institutional markers. This is partly because the common law develops slowly: large paradigm shifts can be firmly cemented into the law only by the highest courts—and sometimes only by the higher court. 'Accidents of litigation' play a crucial role in this process.

But it may be that even if it had the opportunity, the House of Lords would not opt for a 'purely functional' definition of the scope of administrative law. A good way to explain this speculation is to look at the Human Rights Act 1998 (HRA). The HRA requires English courts, in various ways, to protect rights conferred by the European Convention on Human Rights (ECHR)—called 'Convention rights' in the HRA. Because the Convention is a treaty between nation-states, the rights it recognizes and the remedies it provides protect citizens against governments. Only states can be defendants to claims before the European Court of Human Rights (ECtHR), and the ECtHR can award remedies only against a State. In other words, only governments are bound by the ECHR. Individuals and non-governmental entities are not bound. In drafting s. 6 of the HRA, the British government tried to reproduce this feature of the ECHR. However, this task was greatly complicated by constitutional changes (see ex.2). The result is a compromise. Section 6 makes it unlawful for a 'public authority' to act incompatibly with a Convention right. Although 'public authority' is not comprehensively defined, s. 6 says two very important things about the term: first, that it 'includes a court or tribunal'; and secondly, that it 'includes any person certain of whose functions are functions of a public nature' but not 'in relation to' a 'private act'.

This rather opaque wording has been interpreted as creating two classes of public authorities called 'core public authorities' and 'hybrid public authorities' respectively. The basic idea is that core public authorities are governmental entities, and hybrid public authorities are nongovernmental entities performing 'public functions'. Furthermore, s. 6 has been interpreted as meaning that core public authorities are bound by the HRA in relation to both public and 'private' acts, whereas hybrid public authorities are bound only in relation to performance of public acts.

This leaves the question of how to distinguish between public and private functions and acts. Under a purely functional approach, the answer to this question would depend solely on the nature or substance of the function and act in question. However, the courts seem inclined to take a less pure, 'contextual' approach according to which it is relevant to consider not only what was done but also who did it. This difference of approach goes to the very heart of the constitutional changes referred to earlier. One interpretation of these changes is that they were designed, at least in part, to free certain activities from control according to the rules and principles of 'public law' (including human-rights law) by transferring them from the public to the private sector. To give effect to this objective, it would be necessary for courts, in defining the scope of operation of public-law controls, to take account not only of what was being done but also of who was doing it.

Questions:

1. Why is there no universally accepted definition of “administrative law” in England and Wales?

2. Are the decisions of the central government reviewable by the courts? Is the reviewability dependent on any principle?

3. What sets the boundaries of administrative law? What is the reason to it?

4. In which way does the European Convention on Human Rights effect English administration?

5. What is a public authority?

6. What is the difference between core public authorities and hybrid public authorities?

7. What is meant by the term “public functions”?