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Endicott: Administrative Law 2e

Online glossary

[A] [B] [C] [D] [E] [F] [G] [H] [I] [J] [K] [L] [M] [N] [O] [P] [Q] [R] [S] [T] [U] [V] [W] [X] [Y] [Z]

 A

Abuse of power: A use of public power that is blameworthy (either because it oppresses some person, or grabs a private advantage against the public interest). Judges distinguish abusing a power from merely using it wrongly. Abuse of power is generally a ground of judicial review; using a power wrongly is generally not a ground of judicial review.

Action: The old term (before the Civil Procedure Rules 1998) for a claim in which a party asserts a legal right to a remedy in a civil court (now called an 'ordinary claim').

Administration: The running of the executive branch of government. Administration includes both the making and implementing of policies, so far as it can be done without primary legislation or judicial decision. 'The administration' is a general term for the institutions and officers that carry out administration.

Administrative justice: A general term for processes designed to do justice between complainants and the administration. It is used in this book in the more particular sense of non-judicial processes (such as internal complaints processes, and the processes of ombudsmen, tribunals, and auditors) for securing just administration.

Administrative law: An array of legal processes and techniques for controlling the conduct of public authorities (not only administrators, but also many others). Administrative law is reflexive: it controls the conduct of institutions such as tribunals and ombudsmen that were themselves designed to control the administration.

Alternative dispute resolution (ADR): A way of resolving a dispute without taking it to a court or tribunal for a binding determination.

Appeal: A proceeding in which a higher tribunal or court re- examines the decision of a lower tribunal or court, or of an administrative authority. The point is not to repeat the initial proceeding, but to determine whether there is ground for reversing it. Appeal processes are created by statute; the judicial review process has been developed through the common law.

Application for judicial review: The term used for a claim for judicial review (see claim) before the Civil Procedure Rules 1998.

Arbitrariness: A decision is arbitrary if it is unresponsive to reason-that is, if the decision maker does not base the decision on those reasons on which the decision ought to be based (see p 7).

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 B

Bias: The attitude of a decision maker who is hostile towards one side, in a process or proceeding in which the decision maker ought to be impartial.

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 C

Cause of action = Right of action Certiorari ('to be certified'): A prerogative writ developed at common law, which has been replaced by the order called a 'quashing order' in the Civil Procedure Rules 1998.

Civil servant: A servant of the Crown employed by a department of central government ('public servant' is the term for everyone who works for a public authority, including civil servants, police, local authority employees, employees of executive agencies and non- departmental public bodies, employees of the armed forces, etc).

Claim: A judicial proceeding in which a claimant seeks a remedy. In an ordinary claim, the claimant must establish a right to a remedy; the claimant has no right to proceed with the claim if he or she does not assert grounds on which such a right to a remedy could be established (a right of action). In a claim for judicial review, the claimant asks the court for permission to commence a proceeding in which the court will review the lawfulness of a decision 'in relation to the exercise of a public function' (CPR 54.1). The claimant must have standing (which requires a 'sufficient interest' in the matter-see section 11.1.2), and must show that there is a ground for judicial review, but need not show any right to a remedy.

Comity: Respect that one public authority ought to show for the good functioning of another.

Complainant: A person who has a complaint against a public authority.

Compound decision making: Decision making in which an initial decision is subject to review or appeal (see p 167), so that a lack of independence or impartiality in the initial decision may potentially be cured by the availability of review or appeal. Most administrative decision making is compound in this sense.

Court of specific jurisdiction: Court the jurisdiction of which is limited to a particular size or type of claim. These are also called inferior courts (a term at least as old as R v Cowle (1759) 2 Burr 834, 861, Lord Mansfield), because their decisions are normally subject to appeal or review in a superior court.

CPR: The Civil Procedure Rules 1998, available at http://www.dca.gov.uk/civil/procrules_ fin/index.htm

Council of Europe (http://www.coe.int): The treaty organization, set up in 1949, that is responsible for the European Convention on Human Rights. The Council of Europe and the European Union are independent of each other, although they cooperate on joint programmes.

Crown: The crown was a symbol for the power of the state, which the monarch wielded. Today, the Queen herself is a symbol for the power of the state, which is wielded by the government. 'The Crown' is a name for the government of the United Kingdom as a legal personality. Governmental acts of Secretaries of State-and of government departments in general-are acts of the Crown.

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 D

Deference: A reviewing decision maker defers to an initial decision maker if he or she declines to interfere with a decision because of the fact that it was made by the initial decision maker, unless there are special grounds (that is, grounds other than merely that the reviewing decision maker would have taken a different decision).

Derogate: To suspend the effect of a law in a specific situation or class of situations; see p 6.

Discretion: A public authority has discretion to the extent that the law authorizes or requires it to choose between courses of action, without requiring a particular choice.

District judge: A judge in the county courts.

Due process: The decision- making procedures that are required to be followed in making a decision. They may be required by legislation, or by the decision maker's own rules or practice, or by natural justice.

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 E

Ex gratia: As a favour (that is, even though the law does not require it).

European Union (http://europa.eu/index_en.htm): In 1950, Belgium, France, Germany, Italy, Luxembourg, and the Netherlands set up a free- trade arrangement for coal and steel, which has evolved into a unique interstate political and legal system. In 1957, the Treaty of Rome created the European Economic Community. Britain joined in 1973. The Single Market was really completed in the 1990s, and the term 'European Union' was adopted in 1993. Today, there are 27 member states. The major institutions of the EU are the European Parliament, the Council of the European Union, the European Commission, the European Court of Justice, the European Court of Auditors, and the European Ombudsman.

Executive agency: An agency that provides a public service, typically under a framework agreement setting out its responsibilities and its accountability within a department. Unlike a non-departmental public body, it is part of a department, but it has a greater or lesser degree of managerial independence from the departmental structure.

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 F

Fairness: A public authority acts unfairly if it wrongly neglects an interest of a person affected by the decision. The neglected interest may be an interest in the outcome (substantive unfairness), or in participation in the making of the decision (procedural unfairness; see natural justice). Because of the special legal protections for participation in processes (see Chapter 4), the term 'fairness' is sometimes used in public law as a shorthand for procedural fairness. Procedural unfairness is a ground of judicial review. Substantive unfairness is not a ground of judicial review in itself, but certain forms of substantive unfairness ground judicial review.

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 G

Government: In the traditional English sense, 'the government' means the ministers of the Crown and the departments that they administer. The word can also be used in the broad sense for all public authorities including the courts and Parliament; 'the government' in the traditional English sense is the central leadership of the executive branch of 'government' in the broad sense. The word 'Government' is sometimes capitalized when it refers to a particular prime minister and his or her administration.

Grounds for judicial review: Features of a decision that courts treat as reasons (subject to the court's discretion) for interfering with the decision in judicial review.

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 H

Habeas corpus ('get the body'): Early prerogative writ from a court of common law or equity, requiring a person to be brought to the court; it developed into a technique for judges to inquire into the lawfulness of detention.

Human right: A right that persons have because they are human. The European Convention on Human Rights uses the term to mean, roughly, rights that are so fundamental to a civilized community that the Contracting States have a duty to protect them in law (see p 87). According to the Council of Europe: 'Human rights are inalienable rights which guarantee the fundamental dignity of the human being. The European Convention on Human Rights guarantees civil and political human rights. The European Social Charter, its natural complement, guarantees social and economic human rights.'

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 I

Inferior court = Court of specific jurisdiction Inherent jurisdiction: The power of the High Court to create new remedies, or processes, or doctrines to do justice between the parties before it. The power is limited in various ways by common law and statute; it is not a power to ignore the law, but a power to develop the law in the interest of the good administration of justice. The development of habeas corpus is one dramatic and important instance of the exercise of inherent jurisdiction. Its constitutional source is delegation from the Crown to the Queen's judges of the sovereign power to administer justice.

Interest: A reason for wanting to challenge a decision in the courts (for example, the fact that the decision determines your legal position). In order to challenge a decision in judicial review, the claimant's interest in the decision must be 'sufficient'.

Issue: A disputed question that a court must answer in order to decide a claim.

Irrationality: An action is irrational if it cannot be understood as the action of someone acting for a purpose. But in administrative law the term is given a special meaning, which is, roughly, 'extremely unreasonable'. 'Irrationality' in that technical sense is often (but not always-see p 252) a ground of judicial review.

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 J

Judicial review: Consideration by a court of the lawfulness of administrative conduct. But the phrase is sometimes used as a term for the act of interfering with a decision, or as a term for a claim for judicial review.

Jurisdiction: Legal power of decision (as in Anisminic v Foreign Compensation Commission [1969] 2 AC 147) or action (as in Entick v Carrington (1765) 19 Howell's State Trials 1029, concerning whether the Secretary of State had 'a jurisdiction' to seize Entick's papers). Courts, tribunals, and administrative decision makers all have jurisdiction to make legally binding decisions, although the doctrine of review for error of law (see p 309) has made English lawyers hesitate to talk about the jurisdiction of administrative decision makers. Lord Reid used the term in a 'narrow sense' (for power to address an issue) and in a 'broad sense' (for power not only to address an issue, but to reach a particular decision on it): see p 321.

Justice: Appropriateness in conduct. Just administrative action promotes the public good (which includes the overriding public good of respecting the rights not only of citizens, but also of people in general). Justice is not, in itself, a ground of judicial review (see pp 24-5), because the rule of law often requires that a public authority abide by rules that may prevent it from acting justly, or may prevent a court from quashing an unjust decision. But the rule of law itself is valuable only insofar as it serves justice. So justice is the point of the grounds of judicial review, and of law in general.

Justiciability: An issue is justiciable if it is suitable for resolution by judges, through a judicial process.

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 L

Legitimate expectation: An expectation that deserves legal protection. The form of protection can vary. The reason for giving legal protection may be that it is procedurally unfair for an administrative authority to disappoint your expectation without giving you a hearing, or that disappointing your expectation would involve substantive unfairness that a court ought to prevent.

Locus standi: See Standing

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 M

Maladministration: Bad administration. It is not generally a ground of judicial review, although some forms of bad administration give grounds for judicial review. Ombudsmen have the task of investigating complaints of maladministration, and maladministration can infringe Article 8 of the European Convention (but only in very tightly limited circumstances).

Mandamus ('we command'): A prerogative writ developed at common law, which has been replaced by the order called a 'mandatory order' in the Civil Procedure Rules 1998.

Misfeasance: An abuse of power that is done in bad faith. Misfeasance in a public office is the only tort that can only be committed by public officials.

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 N

Natural justice: Legal jargon for procedures that the common law requires. Usually interchangeable with procedural fairness: see pp 113, 115.

New public management (NPM): Management of public projects and government programmes through techniques learned from the management of private enterprise.

Non- departmental public body (NDPB): A public authority that is somewhat independent of government. An executive agency is set up to implement policy set by a department under a framework agreement (an example is Jobcentre Plus, which implements policy set by the Department for Work and Pensions); NDPBs are typically more independent than executive agencies, and set policy at arm's length from a department (but some NDPBs are called 'executive NDPBs' because they provide government services-the Environment Agency is an example).

Non- justiciable: See Justiciability.

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 O

Obiter dicta: See ratio

Ombudsman: An officer who investigates a complaint of bad administration, and reports on what happened and what, if anything, should be done about it. There is a Parliamentary Ombudsman, also referred to as the Parliamentary Commissioner for Administration (the PCA; she also serves as the Health Service Ombudsman), and three Local Government Ombudsmen.

Order in Council: A legislative instrument made by the Privy Council; the Privy Council's role is to rubber- stamp legislation drafted by government departments and presented by ministers. An Order in Council can be an exercise of the prerogative, or it can be a statutory instrument (where a statute provides that delegated legislation under the statute is to be made by Order in Council). An Order in Council made in the exercise of the prerogative counts as primary legislation under the Human Rights Act 1998 (s 21).

Ouster clause: A statutory provision purporting to prevent the courts from interfering with a decision of a public authority.

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 P

Parliamentary sovereignty: The basis of the UK constitution, which imposes no legal limits on Parliament's power to make laws. Acts of Parliament cannot be overruled by any other institution, and Parliament cannot bind its successor as to the content of legislation.

Plaintiff: The term used for a claimant in an action, before the changes in the Civil Procedure Rules 1998.

Policy: A course of action adopted by a public authority, or a reason for a course of action. But the term is commonly used for the sort of governmental purpose on which judges (or ombudsmen …) should defer (to some extent) to administrative officials.

Prerogative powers: Powers that belong exclusively to the Crown, and are exercised by the government. They allow ministers to make certain decisions without an Act of Parliament.

'Prerogative is nothing but the power of doing public good without a rule.'- John Locke, Of Civil Government (1689) Chapter XIV [166]

'Prerogative: A sovereign's right to do wrong.'-Ambrose Bierce, The Devil's Dictionary (1911)

Prima facie: 'At first glance' or presumptively; a ruling is prima facie valid, or a prima facie right or duty exists, if the ruling is valid or the right or duty exists unless some special reason defeats the presumption that it is valid or exists.

Principles: Starting points for reasoning. The principles of administrative law are basic starting points for reasoning about how the law ought to control public action for the good of the public and to give effect to claims of right: see sections 1.5 and 1.6.

Private finance initiative (PFI): A form of public-private partnership in which the private partner invests in a large building project, such as a school or a hospital. The private partner typically owns the facility that is built, and the public partner agrees to provide the private partner with a stream of future income from the service that the facility will be used to provide.

Private law: Law designed to promote the interests of private persons. It includes the law that gives rights to public authorities and private persons in contract and the law of property, and the rules of tort law that impose duties to respect interests of private persons and of public authorities, and the rules and processes for giving judicial remedies for breach of private law rights and duties. There may, of course, be reasons of public policy for making such laws.

Privatization: The sale of a public enterprise to private owners, accompanied by (1) a government decision not to carry on a public enterprise in the industry in question, and (2) (typically) new forms of licensing and regulation of the resulting enterprise. Beware that people sometimes use the word 'privatization' more loosely, for any move by the government to involve private actors in public administration.

Privy Council: A council that advises the Crown; Cabinet ministers and some other ministers are appointed to the Privy Council for life. There are hundreds of Privy Councillors, but advice of the Privy Council is given by those members currently holding ministerial office. Judicial decisions are made on behalf of the Privy Council by a committee of Law Lords and senior Commonwealth judges; that committee serves as the court of final appeal for overseas territories and for those Commonwealth countries that have not abolished appeals. See www.privy-council.org.uk

Procedural fairness: A decision is procedurally unfair if the decision is biased, or if the process by which it is made wrongly disregards the interest that an affected person has in participating in the decision. Since Ridge v Baldwin [1964] AC 40 (see Chapter 4), it has been clear that an administrative decision is unlawful if it is made by an unfair process. Fairness is the primary requirement of due process.

Procedure: A step that a decision maker takes to get information for making a decision, or to hear argument as to what decision it ought to make, or to communicate its decision, or to reconsider its decision, or to entertain an appeal from a decision of another decision maker.

Proceeding: The process by which a case is heard by a tribunal or court.

Process: The set of procedures by which a decision is made (and, potentially, communicated, and reconsidered, or made subject to appeal…).

Prohibition: A prerogative writ developed at common law, which has been replaced by the order called a 'prohibiting order' in the Civil Procedure Rules 1998.

Proportionality: A just relation between legitimate ends that a public authority pursues, and the means by which it pursues them. Ordinarily, it means not imposing a burden on a person that is out of proportion to the value of the public authority's action.

Public authority: A person or institution with a power that is exercised on behalf of the community, and subject to controls for the good of the community. The question of who or what counts as a public authority may have different answers in different contexts, depending on the purposes of a particular doctrine of public law (see section 15.5).

Public law: Law designed to serve the public interest directly (private law promotes the public interest indirectly, by enabling members of the community to make just legal arrangements with each other, and to seek vindication of their rights against each other). Public law gives legal powers for the administration of government and for the making of law, and controls the use of those powers, and imposes duties on private persons in the public interest. So it includes, for example, tax law, criminal law, and constitutional law (cf. administrative law).

Public-private partnership (PPP): An ongoing arrangement between a public authority (often a government department or executive agency) and a private company for the provision of a public service.

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 Q

Quasi- judicial: A decision or function of a public authority that is similar to the decision or function of a judge, so that it requires the public authority to act similarly to the way in which a judge would act. The term has not been used very much since Ridge v Baldwin [1964] AC 40 restored the ancient rule that an administrative decision does not need to be quasi-judicial in order to be subject to the law of due process.

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 R

Ratio or ratio decidendi ('reasoning' or 'reason for decision'): In the common law, the legal basis on which a court decides a case. It determines the effect of the decision as a precedent. A decision binds future courts (subject to powers such as that of the House of Lords to overrule earlier decisions) only as to the ratio. Common law courts have jurisdiction only to adjudicate claims, and not to make general enactments, so the ratio is restricted to the statements of law that a court makes in order to explain why it decided the case as it did. Any further statements of law that the court makes are obiter dicta ('things said along the way').

Reasonableness: It is unreasonable to act in a way that is not guided by the appropriate reasons. The public authorities to which a decision-making responsibility was assigned are often better able to assess those reasons than the judges (who are responsible for the rule of law, but not for good decision making in general). Unreasonableness is not a general ground of judicial review. An action is unreasonable in the special, restricted sense that does provide a ground of judicial review if it is not guided by reasons on which the law requires judges to insist. A decision should be quashed as unreasonable on judicial review when it is inconsistent with reasons that it is right for judges to impose on other decision makers.

Relator proceeding: A claim brought by the Attorney General at the request of a person. These proceedings reflect the general standing of the Crown to ask its courts to determine the lawfulness of official conduct. But they have become obsolete because the courts have become willing to give standing to private litigants to seek judicial review in (it seems) all circumstances in which they might have asked the Attorney General to bring a claim.

Res judicata: The rule that judicial decisions are final (subject to appeal). There is no such general rule for administrative decisions; a public authority generally has authority to reconsider an administrative decision, subject to the doctrine of legitimate expectations.

Right: An entitlement of a person that must be respected regardless of benefits that could be achieved by acting contrary to the person's interest. A legal right is a legal entitlement that the law protects by imposing duties on other persons. See Human right.

Right of action: The right that a claimant has to a remedy in an ordinary claim, if the facts are proved. In an ordinary claim, the claimant's statement of case must assert a right of action; if it 'discloses no reasonable grounds for bringing or defending the claim', the court may strike out the statement (CPR 3.4(2)). A claimant for judicial review need not assert a right of action.

Rule of law: A country has the rule of law if law (that is, a systematic scheme of open, prospective, stable, general rules) controls those aspects of the life of the community that ought to be controlled by law. The rule of law requires independent courts that can determine legal rights and obligations. It does not require that judges make all public decisions. One central challenge for administrative law is working out the extent to which the rule of law requires judicial control over decisions by other public officials (see p 18 and Chapter 2). But the rule of law is not only a matter of judicial control over decision making; it also makes a variety of demands on good administration-chiefly, faithful adherence to the law by public officials, but also independence within the administration for certain decision makers, such as prosecutors, and transparency in the adoption of rules and policies.

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 S

Secretary of State: This really was a secretary under Elizabeth I; under Elizabeth II, they are cabinet ministers who head the major departments. There are Secretaries of State for: the Home Department; Foreign and Commonwealth Affairs; Trade and Industry; Health; Culture, Media and Sport; Constitutional Affairs; International Development; Education and Skills; Communities and Local Government; Work and Pensions; Environment, Food and Rural Affairs; Defence; Transport; Northern Ireland; and Scotland. The phrase 'the Secretary of State' is a common term in legislation for whatever Secretary of State heads the department in question. So, for example, legislation saying 'the Secretary of State may… ' gives a power to the department.

Standing = locus standi: The right to bring proceedings. To have standing to bring a claim for judicial review, the claimant must have a 'sufficient interest' in the matter.

Strasbourg Court: The European Court of Human Rights in Strasbourg.

Subsidiarity: Allocation of power to the level of government (for example, a local council, a regional assembly, a national legislature, or the institutions of the European Union) at which it can be exercised most effectively and responsibly.

Substance: The content of a decision (that is, what is decided); cf. Process.

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 T

Tariff: The period of time that a prisoner must spend in prison for punitive purposes, before being considered for parole. (Parole is then to be granted if release would not be dangerous to the community or to particular people.)

Tribunal: Any decision- making forum is a tribunal (courts are tribunals). But the word 'tribunal' is used in a special sense in English administrative law to refer to a quasi- independent decision- making authority that is separate from the courts service, but hears a dispute between two parties (so it is different from an ombudsman, who investigates a complaint).

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 U

Ultra vires: Latin for 'outside [someone's] lawful powers'. In administrative law, English lawyers and judges sometimes talk as if acting ultra vires means acting in a way that Parliament intended to be outside the public authority's powers. But no public authority has lawful power to act contrary to law, so an action of a public authority is ultra vires if it is unlawful for any reason (because Parliament has prohibited such action, or because some other rule of law prohibits it).

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 W

Wednesbury grounds (= Wednesbury principles): Lord Greene's explanation, in Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223, of some of the restricted grounds on which a court will quash an unreasonable decision of a public authority.

Wednesbury unreasonableness: A decision is Wednesbury unreasonable if it is 'so unreasonable that no reasonable authority could ever have come to it' (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, 230, 234 (Lord Greene)). (Beware: the phrase is used in various other ways by different judges and writers!) It is essential to remember that Lord Greene mentioned other grounds of control of discretion too: they are often called the Wednesbury principles.

White Paper: A document produced by the government or a parliamentary committee outlining a policy or a legislative proposal.

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