the nature and scope of administrative law

8/13/2019 The Nature and Scope of Administrative Law

1/4

The Nature and Scope of Administrative Law

It is the function of Administrative law to ensure that good administration is

achieved fairly and justly. A brief and succinct definition of administrative law has been

provided by Professor Wade when he states that, it is the law relating to the control of

governmental power.

According to Professor Fiadjoe, in distinguishing the scope of Administrative law from

Constitutional law, he stated that the former is concerned with essentially

superintending! the day to day e"ercise of the functions of public authorities, whereas,

Constitutional law is basically concerned with the allocation of specific functions to

public authorities. It is to be noted as adverted to earlier that even this demarcation,

though helpful in a broad practical way, cannot be ta#en too literally and applied too

rigidly since the province of Constitutional law is also concerned with regulating the day

to day e"ercise of constitutional power by public authorities. Apart from the issue of

conceptual purity, there seems to be no practical or logical reasons why the claims and

remedies arising out of both Administrative law and Constitutional law should not e"ist

side by side. Indeed, the constitutional provisions which stipulate that the courts can

refuse to entertain a constitutional claim where a claimant can obtain ade$uate redress in

certain circumstances under any other law, see#s to ensure that at the practical level there

would be no overlapping and duplication of action. %his allows for judicial and other

economies while at the same time permitting the primacy of constitutional claims where

it can be shown that though a cause of action may lie in both Administrative and

Constitutional law &such as in the case of an abuse of ministerial or other discretion

which affects one's fundamental rights. (ote)Camacho v. Collector of Customs [1971]

18 WI 1!9* that the non+constitutional claim does not allow for ade$uate redress. (otethat the case of Camacho is $uoted as an e"ample only in relation to demonstrating the

overlapping of claims arising from the factual scenario and it is not given as an

illustration of the issue of the ade$uacy or inade$uacy of a non+constitutional form of

redress.

8/13/2019 The Nature and Scope of Administrative Law

2/4

In terms of identifying the scope of Administrative law, it is important to note a

significant distinguishing feature of departure in the Commonwealth Caribbean from

nglish Administrative law. For instance, as indicated in w#sht -, Professor Wade

e"cluded Parliament for the egislature from the ambit of Administrative law because as

he puts it, Parliament as the egislature is sovereign and subject to one e"ception &i.e.

uropean Community law* is beyond legal control.! &/ee Wade 0thedn ch. 1+2*

3ased on the same principle or reason justification used by Professor Wade in

e"cluding the e"ercise of legislative power from the province of Administrative law, one

could justify the inclusion of this state function within the compass of Administrative law

in the Commonwealth Caribbean since the legislatures in the Comm. Caribbean are all

subject to legal control, in that they are subject to the control of the respective Comm.

Caribbean constitutions, so that unli#e ngland, if we accept Professor Wade's argument,

the definition of Administrative law in the Comm. Caribbean should be broadened to

refer to that law which is concerned with the legal control of the legislative, e"ecutive

and judicial e"ercise of /tate power.

Another definitional issue that has great conceptual and practical significance is

what are the bodies or entities or persons who are properly legally subject to the control

of Administrative law4 %he law has developed rapidly in this regard and has moved

away from a formal descriptive analysis to a more functional and purposive analysis.

%hus, the recent focus of the law is not so much how the body, entity or person has been

statutorily described, but rather what is the nature and function of the body, entity or

person even if that body, entity or person has no statutory underpinning. %he Courts in

this regard see# to find out before they are able to allow judicial review under Public law

whether the body, entity or person performs functions having a sufficient public element

involving some governmental interest. In doing so, the courts loo# at the nature and

purpose of the functions of the entity in $uestion, its impact and conse$uences on the

public interest, whether any public funds are being used and other relevant factors. (ote

that this analysis is only generally necessary with respect to non+statutory bodies, so that

one may say that there is a presumption that statutory or constitutional bodies, entities or

persons are subject to the control of judicial review.

8/13/2019 The Nature and Scope of Administrative Law

3/4

The Development of Administrative Law

In the case of v. "#vertising $tan#ar#s "uthorit% e& parte 'he Insurance

$ervice, it was held that though the authority in $uestion ha# no powers grante# to it (%

statute or common law) nor an% contractual relationship with the a#vertisers whom it

controlle#) %et it was hel# that the authorit% was su(*ect to *u#icial review . %his was

found to be so because the authority in the court's view, was clearl% e&ercising pu(lic

law functions. In this case, the court applied the reasoning, though not the result, of

ord 5onaldson 67 in the case of v. +anel on 'a,eovers an# -ergers e& parte

atafin [1987] 1 "ll / !0. ord 5onaldson stated the principle thus, in all the

reports) it is possi(le to fin# enumerations of factors giving rise to the *uris#iction) (ut it

is a fatal error to regar# the presence of all those factors as essential or as (eing

e&clusive of other factors. +ossi(l% the onl% essential elements are what can (e

#escri(e# as a pu(lic element) which can ta,e man% #ifferent forms an# the e&clusion

from the *uris#iction of (o#ies whose sole source of power is a consensual su(mission to

its *uris#iction.

Judicial Review

%his refers to the basic power or jurisdiction of the courts to e"amine or review the

e"ercise of /tate power in order to ensure that they act within the scope of their

jurisdiction in both procedural and substantive terms. %hus, the basic principle

underlying this great power of judicial review is the doctrine or principle of ultra vires.

%he term means beyond one's powers!. ssentially, the courts pose the general

$uestion as to whether the powers e"ercise or sought to be e"ercised, have been or are

being validly e"ercised according to law. Conceptually, this issue can be classified in a

number of ways. 8ne classification which finds early illustration in our case law is thatof substantive or procedural ultra vires. Another important classification is the one

developed by ord 5iploc# in the case of Council of Civil $ervice 2nion v. -inister for

the Civil $ervice [198!] "C 37) [198] 3 "/ 93!. 9ere, ord 5iploc# classified the

basis of judicial review under the three broad heads of )+

-. Illegality :. Irrationality ;. Procedural Impropriety

8/13/2019 The Nature and Scope of Administrative Law

4/4

9e defined illegality to mean that the #ecision4ma,er must un#erstan# correctl% the law

that regulates his #ecision4ma,ing power an# must give effect to it. Whether he has or

not is par e&cellence a *usticia(le 5uestion to (e #eci#e# in the event of a #ispute (%

those persons) the *u#ges) (% whom the *u#icial power of the $tate is e&ercisa(le. It is

significant to note here that ord 5iploc# is using the term illegality in a special and

narrow sense, since the term illegality could be understood in the broader sense of

encompassing all of the species of ultra vires.

ord 5iploc# then defined the term irrationality to include the Wednesbury principle of

unreasonableness as established by the case of"ssoc. +rovincial +icture 6ouses t#. v.

We#nes(ur% Corp [198] 1 ::3. ord 5iploc# further amplified the term

irrationality in stating that it applies to a #ecision which is so outrageous in its #efiance

of logic or of accepte# moral stan#ar#s that no sensi(le person who ha# applie# his

min# to the 5uestion to (e #eci#e# coul# have arrive# at it. Whether a #ecision falls

within this categor% is a 5uestion that *u#ges) (% their training an# e&perience) shoul# (e

well e5uippe# to answer or else there will (e something (a#l% wrong with our *u#icial

s%stem. 'o *ustif% the courts e&ercise of this role) resort) I thin, is) to#a% no longer

nee#e# to ;iscount a#cliffe