An Introduction to Administrative Law

By Peter Cane | Go to book overview
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SECTION B
GROUNDS OF JUDICIAL REVIEW

6
Authority

INTRODUCTION

JUDICIAL review is mainly concerned with decisions.1 Decisions may concern the making of an order or a rule, the issue of a licence or a certificate, and so on; and they may concern the exercise of a discretion or the performance of a duty. Even where the applicant complains that he or she has been treated in a disadvantageous way, in legal terms the complaint will typically focus on a decision to treat him or her in that way. The making of any particular decision can usefully be conceived of as a process with a beginning, an end, and a route from one to the other. Correspondingly, it is possible to divide the grounds of judicial review into three groups concerned with the beginning of the process (did the decision-maker have authority to embark on the process?), the end (or 'output') of the process (is the decision itself objectionable on grounds which justify judicial intervention?) and the route from the beginning to the end (what 'inputs' went into the making of the decision? and was the procedure followed fair?) In this chapter we are concerned with the first of these issues. No governmental institution in Britain has power to make any and every decision it chooses, although Parliament has very wide decision-making freedom. Administrative bodies, with which we are primarily concerned, all have only limited authority.

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1
It is often said (e.g. J. Bell in K. Hawkins (ed), The Uses of Discretion ( Oxford, 1992), 107) that in focussing on individual decisions as if they were discrete events, the law tends to ignore the wider context in which decisions are made as part of a process. Treating decisions as isolated events may lead courts to enunciate rules governing the making of decisions which are difficult to implement in practice or which have unexpected and undesirable side-effects.

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