Helping you understand Welsh law

Introduction to administrative law

Administrative law (sometimes referred to as ‘public law’) is a body of law which has developed principles which seek to ensure that public bodies act in a way which is legal, reasonable and fair.  It provides a way to challenge maladministration or the misuse or abuse of power by a public body.

Administrative law forms 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 by which the judiciary controls and prevents the misuse of power by the executive. (More information on how the UK constitution is based on separating the functions of legislature, executive and judiciary, and the checks and balances inherent in that system, can be found here.)

Apart from the UK Parliament (which is sovereign), all other public bodies 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 the National Assembly for Wales must not encroach beyond the subject matter upon which it has competence to legislate, as set out in the Government of Wales Act 2006. Even the Crown itself is required to observe most laws. There are two aspects to checking whether a public body has acted within the law:

  • public bodies must not act outside their powers - this involves ensuring both that the person or body performing a function is the person or body with the power to perform that function, and that the person or body does not exceed the scope of the powers given to them;
  • public bodies must exercise their powers in a lawful way - different considerations arise depending on the circumstances, but broadly this can involve ensuring that something done by a public body is reasonable, done for a proper purpose, proportionate and procedurally fair, and that the public body discharged its functions in a way that was impartial and took into account all relevant considerations.

Administrative law is not concerned with the merits of a decision, for example 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) and a declaration (to declare what the legal position is).

The Government publication “The Judge Over Your Shoulder” (last updated in 2006) provides an overview of the principles of administrative law and the judicial review process.

 

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