the nature and scope of administrative law
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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.
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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.
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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
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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