CILEx L6 Constitutional & Administrative Law 2 — Questions and Answers
Question 1: What is a 'legitimate expectation' in administrative law?
- An expectation (substantive or procedural) arising from a public body's clear and unambiguous representation or consistent practice, which the body cannot frustrate without acting unlawfully (R v North and East Devon Health Authority ex p Coughlan [2001]) (Correct answer)
- Any hope that a public body will maintain a policy
- A contractual right of a public body's contractor
- An expectation based on the policy of a previous government
Correct answer: An expectation (substantive or procedural) arising from a public body's clear and unambiguous representation or consistent practice, which the body cannot frustrate without acting unlawfully (R v North and East Devon Health Authority ex p Coughlan [2001])
A legitimate expectation arises where a public body has made a clear, unambiguous, and unqualified representation or established a consistent practice on which a person has reasonably relied. In Coughlan, the Court of Appeal held that frustrating a substantive legitimate expectation may be unlawful unless there is a sufficiently weighty public interest.
Question 2: What is the effect of s.3 Human Rights Act 1998 on statutory interpretation?
- So far as it is possible to do so, legislation must be read and given effect in a way compatible with Convention rights — 'possible' can require a radical interpretation but not one inconsistent with fundamental provisions (Correct answer)
- Courts must disapply any legislation incompatible with Convention rights
- Courts may rewrite legislation to make it Convention-compatible in all cases
- S.3 only applies to legislation enacted after 1998
Correct answer: So far as it is possible to do so, legislation must be read and given effect in a way compatible with Convention rights — 'possible' can require a radical interpretation but not one inconsistent with fundamental provisions
S.3 HRA 1998 requires courts to read and give effect to legislation compatibly with Convention rights 'so far as it is possible to do so'. This duty is strong but has limits — courts cannot adopt an interpretation that goes against the grain of the legislation (Ghaidan v Godin-Mendoza [2004]).
Question 3: What is a 'declaration of incompatibility' under s.4 Human Rights Act 1998?
- A declaration by a court that primary legislation is incompatible with a Convention right — it does not affect the validity of the legislation, but triggers a ministerial power to amend by order (Correct answer)
- A court order striking down incompatible legislation
- A declaration that a public body's decision breaches human rights
- A declaration that requires Parliament to repeal incompatible legislation within 6 months
Correct answer: A declaration by a court that primary legislation is incompatible with a Convention right — it does not affect the validity of the legislation, but triggers a ministerial power to amend by order
Under s.4 HRA 1998, where a court (High Court and above) cannot read legislation compatibly with a Convention right under s.3, it may make a declaration of incompatibility. This does not affect the validity of the legislation but triggers a fast-track ministerial power to amend it (s.10 HRA 1998).
Question 4: What is 'natural justice' and what are its two main requirements?
- The right to a fair hearing (audi alteram partem) and the rule against bias (nemo judex in causa sua) — both are required for procedurally fair decision-making by public bodies (Correct answer)
- Decisions must be made in accordance with natural law principles
- A decision-maker must always give reasons for their decision
- Parties must be given the opportunity to give oral evidence in all cases
Correct answer: The right to a fair hearing (audi alteram partem) and the rule against bias (nemo judex in causa sua) — both are required for procedurally fair decision-making by public bodies
Natural justice has two limbs: (1) audi alteram partem — the right to a fair hearing (the decision-maker must hear the other side before deciding), and (2) nemo judex in causa sua — no one should be a judge in their own cause (no apparent or actual bias).
Question 5: What are 'prerogative powers' and can they be reviewed judicially?
- Residual powers of the Crown exercised by the government without statutory authority; they can be reviewed if their exercise is justiciable, but some (e.g., treaty-making, national security) are non-justiciable (Correct answer)
- Prerogative powers can never be subject to judicial review
- All prerogative powers are reviewable by the courts
- Prerogative powers were abolished by the Constitutional Reform Act 2005
Correct answer: Residual powers of the Crown exercised by the government without statutory authority; they can be reviewed if their exercise is justiciable, but some (e.g., treaty-making, national security) are non-justiciable
Prerogative powers are residual common law powers of the Crown (Council of Civil Service Unions [1985]). Following the GCHQ case, courts can review the exercise of prerogative powers unless the subject matter is inherently non-justiciable (e.g., treaty-making, deployment of armed forces, pardons).
Question 6: What is the role of the Parliamentary Ombudsman (Parliamentary and Health Service Ombudsman)?
- To investigate complaints of maladministration causing injustice by government departments and bodies, referred through MPs (Correct answer)
- To prosecute government departments for unlawful conduct
- To audit government spending and report to Parliament
- To review the constitutionality of government legislation
Correct answer: To investigate complaints of maladministration causing injustice by government departments and bodies, referred through MPs
The Parliamentary and Health Service Ombudsman investigates complaints about maladministration (including delay, incompetence, and misleading information) causing injustice in government departments and NHS bodies. Complaints must be referred through an MP (the MP filter), and the PHSO's findings are not legally binding but are generally followed.
CILEx L6 Constitutional & Administrative Law 2
What is a 'legitimate expectation' in administrative law?