An Introduction to Administrative Law

By Peter Cane | Go to book overview

13
Government Contracts

THE BASIC PRINCIPLE

THE basic principle that government should be subject to the ordinary law of the land lies at the bottom of the law of government contracts,1 both in respect of contracts made with governmental bodies generally and in respect of contracts made with central government (the Crown) in particular. Prior to 1947 the fiat (or leave) of the Attorney-General had to be obtained by a litigant who wished to bring an action for breach of contract against the Crown, but this special procedural protection for the Crown was abolished by section 1 of the Crown Proceedings Act 1947. Section 17 of the Act overcomes technical obstacles to suit which may arise if the department of central government which the plaintiff wishes to sue is not strictly a legal person (that is, if it is not incorporated). The 1947 Act has, therefore, removed procedural obstacles to suing central government for breach of contract.


PRECONTRACTUAL NEGOTIATIONS AND THE
MAKING OF CONTRACTS

The traditional attitude of the English common law to the making of contracts2 is embodied in the phrase 'freedom of contract': parties are entitled, subject to any relevant legal limitations, to make what contracts they like with whomever they choose, or not to contract at all. This common law principle applies as much to governmental contracting parties as to private individuals; and it applies as much to the statutory contracting powers of governmental bodies generally as to the common law contracting power of the Crown. This laissez-faire approach of the common law has had some very important consequences. The first is that as a general principle, the common law contracting power of the Crown has traditionally not been subject to judicial review. In this respect, it

____________________
1
C. Turpin, Government Procurement and Contracts ( London, 1989).
2
Here we are concerned chiefly with the procurement of goods and services. The position regarding government employees is considered below.

-257-

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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