Admin Revision Notes PDF

**[Introduction to administrative law- ]** High profile: Heathrow airport third runway, oil extraction. **Public inquires**- - Long running, - Evidence based, - Report with recommendations. Grenfell tower, post office computer issue (sub post masters), infected blood inquiries. **Defini...

**[Introduction to administrative law- ]** High profile: Heathrow airport third runway, oil extraction. **Public inquires**- - Long running, - Evidence based, - Report with recommendations. Grenfell tower, post office computer issue (sub post masters), infected blood inquiries. **Defining administrative law**- Endicott quote, Administrative Law, 4th edn (OUP, 2018), p.xv 'Administrative law is the public law of administration. It is the body of legal standards that establishes executive institutions of government, confers governmental powers and imposes duties on public authorities, and provides recourse for some complaints about the conduct of government. It creates frameworks that govern social security, public education, planning, employment, the regulation of banking and of competition among businesses, local government, the National Health Service, immigration and asylum the police, prisons, probation, the Armed Forces, the collecting of taxes, the conduct of ministers of the Crown, and every department of government'. **Public law/private law distinction**- Private law: duties that private individuals owe to one another. Public bodies are also bound by private law but they also do additional things that cannot be regulated by private law. Public law/ administrative law: the law regulating those powers held by Government and Public bodies. Administrative Law: the law regarding the administration of the State and the rules governing the use of executive and administrative power. Good administration is that public bodies should be fair, open, and transparent in their decision making, should act honestly, speedily, efficiently and without bias. They should only take into account relevant considerations and give reasons for their decisions. Judge over your shoulder. **History of admin law**- Dicey and administrative law, 'For the term droit administrative English legal phraseology supplies no proper equivalent. The words "administrative law", which are its most natural rendering, are unknown to English judges and counsel,\ and are in themselves hardly intelligible without further explanation'. **Judicial expansionism**- Judicial review and the rules of natural justice ae said to have been established by the 1500s. however, it is commonly held that judicial review and administrative law did not fully take root until the mid 20^th^ century. This is arguably because of: - The predominance of the Diceyan theory in the nineteenth century. - The expansion of the administrative state post WW2. The constitutional principles of administrative law generate deep controversies about some of the simplest practical questions in administrative law- Endicott. **An evolving field**- R.B. Taylor, 'Late to the party: chronicling the role of the courts in the continuing evolution of UK public law' (2018) 6:1 Comparative Legal History 124, 150 (Review Article). More opportunities for the courts to contribute. Miller was likely only the first of many cases (Brexit). Manifesto of the conservative party in 2019. **Judicial Review and Courts Act 2022**- Two important changes- - Remedies: discretion to suspend quashing orders and their retrospective effect. - Abolition of 'Cart' judicial reviews. **Who is bound by administrative law**- - UK government, - Public authorities, - Devolved governments, e.g., Scottish government. - Local government. - Any private body which satisfies the tripartite test in *West*. **Executive agencies-** Exist outwith departmental structure of central and devolved government. Led by an Agency Chief Executive (ACE). Agencies are regulated by a Framework Document which can include provisions permitting ministerial oversight. Such agencies are currently responsible for a variety of public services such as: - Highways England, - Transport Scotland. **Contracting out-** Deregulation and Contracting Out Act 1994, Part II. - Section 72: 'anything done or omitted to be done by or in relation to the authorised person (or an employee of his) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done' by the Minister, officeholder or local authority. Courts are reluctant to judicial review such private bodies. **Enforcing administrative law**- - Judicial review - Tribunals - Ombudsman - Public inquiries. **[Standing- ]** **Who can raise an action**- A petitioner must have standing (locus standi). It is a preliminary decision made by the court during the permission stage. In England and Wales the test is Sufficient standing. In Scotland the test used to be title and interest. Now it is sufficient interest but there are distinctions between Scotland and England. **[England- ]** Senior Courts Act 1981, s.31(3): Sufficient interest test: No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the application has a sufficient interest in the matter to which the application relates. Sufficient interest is a broad test, developed by the courts in subsequent case law, but one which must be satisfied in each case. Case: *Inland Revenue Commissioners v National Federation of Self*-\ Employed and Small Businesses Ltd \[1982\] AC 617\ ▪ Facts: - Inland Revenue agreed special arrangement not to pursue casual newspaper workers in Fleet Street for unpaid taxes (est. £1 million a year) if they agree to pay all future taxes and use their real names and addresses - The National Federation of Self-Employed and Small Businesses Ltd challenged, unlawful. - Divisional Court gave leave to proceed but later held that the National Federation lacked standing. The Court of Appeal overturned this. This decision appealed to the House of Lords. ▪ Held:\ it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed' (Lord Wilberforce, at 630). **Justifying the two stages-** Preliminary: - To prevent abuse by busybodies, cranks, and other mischief-makers. - To safeguard against the courts being flooded and public bodies being harassed. Substantive: - To place a more significant emphasis on facts and merits of each case. - Fusing standing with merits of each case: resulted in courts adopting a liberal approach towards the test for sufficient interest. **The liberal approach**- Case: *R (on the application of Bulger) v Secretary of State for the Home Department \[2001\] EWHC Admin 119*. Generally set at a low level as there is importance in public law that someone should be able to call decision makers to account, lest the rule of law breaks down. Case: *R v Secretary of state for foreign affairs ex p Rees-Mogg \[1994\] QB 552*. Lord Rees-Mogg is editor of times and held to have sufficient interest by virtue of interest in constitutional affairs. Case was ultimately dismissed, however. **Group standing**- Multiple applicants will not necessarily increase the likelihood of sufficient interest being accepted; applicants are judged individually not collectively. There is no cumulative standing. Case: *R v Secretary of state for home department, ex p Rose theatre Trust* \[1990\] 1 QB 504. COMPARED TO Case: *R v Inspectorate of Pollution, ex p Greenpeace* (No 2) \[1994\] 2 CMLR 548 However, this does not mean that interest groups can never have sufficient interest: Case: *R v Secretary of state for foreign and commonwealth affairs, ex p World development movement* \[1995\] 1 WLR 386. **[Scotland: Old Test]**- **Title to sue**: Petitioner must be party to a legal relationship conferring a right which is infringed or denied by respondent. Case: *Scottish Old People's Welfare Council, Petitioners* 1987 SLT 179. Benefit relating to severe weather conditions. If a statute creates a duty to the public as a whole then an association comprised of such members of the public also has title to sue. (there was no interest to sue however). Case: *Glasgow Rape Crisis Centre v Home Secretary* 2000 SC 527. Home secretary let convicted rapist to enter country to compete in Glasgow, made under Immigration Act 1971. Legislation did not create general duty to the public as a whole, only those seeking entry. Pressure group therefore lacked title to due. **Interest to sue**: Petitioner must have sufficient interest to sue, an assessment made by the court which depends upon individual circumstances of the case. The petitioner will generally lack interest if seeking to gain a remedy which will only benefit others and not the petitioner directly. Therefore, they must be directly affected. Case: *Scottish Old People's Welfare Council, Petitioners* 1987 SLT 179 (above). Court held petitioners lacked interest as they sought to represent the elderly not themselves. Too remote an interest. **Standing rules too restrictive**: English law: no title requirement, a more liberal sufficient interest. BUT the advantages of a more strict approach means that the court of session is not bogged down hearing cases from those with insufficient connection. Protects potential respondents from trouble and expenses of litigation where no needed. **[Scotland: New test]**: **An evolving doctrine**: Case: *AXA General Insurance v Lord Advocate* \[2011\] UKSC 46. England's test adopted by Supreme court for public law actions (e.g., a challenged to an Act of Scottish Parliament). **Statutory reform**: Scottish Civil Courts Review (2009) = Advocated adoption of English Law's single test of 'sufficient interest' in general -- drop requirement of a title to sue altogether. **Courts Reform (Scotland) Act 2014**- Section 89: - Amends Court of Session Act 1988 by inserting four new provisions (ss\ 27A-D) - Section 27A -- 3-month time limit on applications - Section 27B -- requirement for permission; applicant must 'demonstrate a sufficient interest in the subject matter of the application.' - Phased implementation of 2014 Act - New judicial review procedures became effective on 22^nd^ September 2015. **[Scope]**- **[England]**: **Who can be sued**: - Exclusivity principle: only matters relating to public law should be dealt with by judicial review- has been qualified by subsequent case law. - Not only applies to public bodies but also to those carrying out/ exercise a public function - Case: *R v Panel of Takeovers and Mergers, ex p Datafin Plc and others* \[1987\] QB 815. - Relationship of membership also relevant- a contract would be indicative of a private relationship which is governed by private law. **Exclusivity principle**: Case: *O'Reilly v Mackman* \[1983\] 2 AC 237. Prison riots with disciplinary offence by board of visitors. Challenged decision that it breached rules of natural justice. Not available but this was reversed, and the decision was quashed. \[J\]udicial review... should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public body, or of anyone acting in the exercise of a public duty'. -- Lord Denning, at 256 (Court of Appeal) **Exceptions to the exclusivity principle:** Case: *Wandsworth London Borough Council v Winder* \[1985\] AC 461 - Local council brought private law actions against a tenant who refused to pay an increased rate of rent. In defence, the tenant argued that the decision to increase the rent was ultra vires and thus void. - HL upheld the ability of the tenant to do so, thus permitted a judicial review action as a defence to a claim in private law. Case: *Roy v Kensington and Chelsea and Westminster Family Practitioner Committee* \[1992\] 1 AC 624 - GP initiated a private law action against the Committee to reclaim his refused allowance. The Committee sought to block this on the basis that their decision was a public law one and so should be challenged via judicial review. - HL held that because a private contractual right was involved, a private law action could take place even if it involves a challenge to a public law decision. Consequently, where a case involved both public and private law issues, either action can be used. **The exercise of a public function**: Historically, the question of whether or not an authority was 'public' was determined by references to its source e.g., prerogative or statute. Now they look to the nature of the authorities functions. - Civil procedure rules, r 54.1(2)(a)(ii). - A claim for judicial review means a claim to review the lawfulness of a decision, action, or failure to act in relation to the exercise of a public function. Case: *R v Panel of Takeovers and Mergers, ex p Datafin Plc and others* \[1987\] QB 815, (Above). Held that \[The Panel on Takeovers and Mergers\] is without doubt performing a public duty and an important one. The court of appeal reversed the decision of the divisional court and allowed judicial review. Case: *R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann* \[1992\] 1 WLR 1036. Rabi sought to challenge the decision of his employment being terminated by Chief Rabi. His application was dismissed as \[the rabbi's\] functions are essentially intimate, spiritual, and religious -- functions which the government could not and would not seek to discharge in his place were he to abdicate his regulatory responsibility'. Case: *R v Disciplinary Committee of the Jockey Club, ex p Aga Khan* \[1993\] 1 WLR 909. Winning horse at Epson was disqualified for doping. Owner wished to challenge this. Held originally that it was not susceptible to judicial review BUT The Court of Appeal reversed this, but nevertheless held that whilst the Club's functions were public in nature, they were not governmental, and thus dismissed the appeal. - **This was due to the absence of any governmental control and the contractual nature of the relationship between the Jockey Club and its members.** - It would in my opinion be contrary to sound and long-standing principle to extend the remedy of judicial review to such a case'- Bingham. **[Scotland:]** **Who can be sued**: Decisions of private bodies therefore do not ordinarily fall under judicial review. BUT, the court of session rejected this distinction in: Case: *West v Secretary of State for Scotland* 1992 SLT 636-actions and decisions of private bodies may be reviewable under some circumstances. Prison officer refused moving expenses. This was held to be a contractual issue BUT the court of session inner house did expand on the nature of judicial review. - Jurisdiction does not depend on a distinction between public and private law. - Tripartite test: - Person taking the decision being challenged. - Person or body granting power to the decision-maker. - Person seeking review (petitioner, affected party). - Judicial review will be available where these are identifiable and linked. - Note that west failed this test. Purpose of judicial review in west- 'Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him.' Case: *Crocket v Tantallon Golf Club* \[2005\] CSOH 37. Member expelled by 101 to 1 vote. It was held to not be unlawful. It was not contrary to club rules. This did however satisfy the tripartite test. **[Illegality]**- **[Grounds for review]**: Case: *R v Cambridge Health Authority, ex parte B* (No 1) \[1995\] 1 WLR 898. Appeal against a decision to refuse further funding for chemotherapy. First instance judge quashed the health board decision. Court of appeal upheld the decision. It is not possible for the court to make calls of this kind. 'Difficult and agonising judgements.' This is for the separation of power principle. **Three heads of review**: Judicial review has developed to a stage today when one can conveniently classify under three heads the ground upon which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality, and the third procedural impropriety. This is from the below case. Case: *Council of Civil Service Unions v Minister for the Civil Service* \[1985\] 1 AC 374, 410. **[Illegality]**: **Basic idea**: By illegality as a judicial review, I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. -from the above case. All actions and decisions of decision-maker must fall within scope of power conferred upon the decision-maker. Several types of illegality- - Acting without legal authority, - Errors of law and facts, - Failing to exercise a discretion, - Abuse of discretion. **[1) What is not authorised]**: Acting without legal authority to do so. Case: *AG v Fulham Corporation* \[1921\] 1 Ch 440. Wash-houses act 1846-78, local authorities had power to establish baths etc. A local laundry did not fall under this act. The council did not **expressly** **or** **impliedly** give power to conduct the operation. **[2) Errors of law and fact]**: **Errors of law:** - Decision maker misinterprets the applicable law. - Traditionally, Scottish courts maintained a distinction between jurisdictional errors (where mistake is made to the scope) or non-jurisdictional errors (errors not relating to scope). - But - Case: *Eba v Advocate General for Scotland* \[2011\] UKSC 29. The UKSC rejected this distinction and said that Scots law was the same as English law. In other words all errors of law are reviewable. **Errors of fact:** - Decision maker misinterprets facts of dispute. - Cours will only intervene where findings of fact reached on no evidence or contrary to evidence. - Other errors of fact are better left to the appeal court, not judicial review. **[3) What is discretionary?\ ]**- failure to exercise and abuse of discretion. **[1) Discretion must be exercised- ]** - Delegation, deference, policies. **Delegation**- General rule: a delegate is not allowed to delegate. Case: *Barnard v National Dock Labour Board* \[1953\] 2 QB 18. Dock workers regulation gave power to suspend workers to local boards. Port manager suspended workers without oversight by the local board. This was held not lawful. Carltona principle: ministers may delegate authority to civil servants in their departments. Case: *Carltona Ltd v Commissioner for Works* \[1943\] 2 All ER 560). **Deference/ abdication**: General rule: a delegate cannot be bound by the views of others. Case: *Lavender & Son Ltd v Ministry of Housing and Local Government* \[1970\] 1 WLR 1231. Wanted permission to develop agricultural land and permission was denied based on agreeing with minister of agriculture. This is unlawful. This is called discretion fettered. **Policies:** General rule: a decision maker may have a policy, but it must remain willing to decide each case on its merits. Case: *British Oxygen Co Ltd v Minister of Technology* \[1971\] AC 610. Grant for investments in equipment. Policy of only giving grants for items over £25. Request denied for something costing £20 per product. This was considered to be too rigid a policy. 'Must not shut his eyes'- Lord Reid. Case: *R v North West Lancashire Health Authority, ex parte A and others* \[2000\] 1 WLR 977. Requested gender reassignment, denied by health board on explicit policy not to fund operations unless overriding need. Policy gave no indication of what may amount to overring clinical need- the provision for an exception in a case of 'overriding clinical need' was in practice meaningless. **[2) Discretion must be legitimately exercised]**: Abuse of discretion: proper/improper purposes, irrelevant/relevant factors. Case: *Padfield v Minister of Agriculture, Fisheries and Food* \[1968\] AC 997. Milk marketing scheme, committee could investigate complaints but only if referred to by minister. Is discretion unfettered/ unlimited. NO. If you never use the discretion. There is no such thing as unlimited discretion. **Proper/improper purposes**: General rule: Powers may only be used for the purposes for which they were expressly or impliedly given. Case: *Porter v Magill* \[2001\] UKHL 67. Conservative controlled Westminster city council sold council housing stock for purpose of improving electoral prospects. This is not the proper purpose. Not allowed. **Relevant/ irrelevant factors**: General rule: decision makers must take into account all relevant factors, and no irrelevant factors. Case: *R v Secretary of State for the Home Department, ex parte Venables and Thompson* \[1998\] AC 407. Home secretary increased tariff of murderers based on a petition by tabloid. This was no held to be a relevant factor. Illegality: Overview-\ 1) Decision-makers must not act beyond their powers (Fulham Corp)\ 2) Decision-makers must nor err as to law or fact\ 3) Decision-makers must actually exercise their discretion. - Consequently, they may not abdicate (Lavender and Son); apply a policy in an over-rigid manner (British Oxygen, Lancashire Health Authority); or delegate (Barnard), with the exception of a Minister to a civil servant (Carltona). 4\) Decision-makers must legitimately exercise their discretion.\ Consequently, they must legitimately exercise their discretion for\ a proper and not an improper purpose (Padfield, Porter), and\ based on relevant and not irrelevant factors (Venables). **[Procedural impropriety]**- **Basic idea**: Lord Diplock held this is a failure to observe basic rules of natural justice and failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred. Two types of claim: - Decision maker failed to follow procedures in legislation. - Decision maker failed to comply with rules of procedural fairness or natural justice. **[1) Compliance with procedure]**: **Procedural requirements**: - Procedural requirements laid down by statute or other instrument conferring a decision-making power must be complied with. - Failure to follow procedure will not always result in being deemed unlawful - Mandatory (compulsory) requirements: - Decision invalid. - Directory (advisory) requirements: - Technical or trivial requirement which may not result in decision being held invalid if not complied with. - Rebuttable presumption that statutory requirements are mandatory. **Mandatory requirement**: Case: *Bradbury v Enfield London Borough Council* \[1967\] 1 WLR 1311. Local authority sought to implement 11+. Local authority misinterpreted statute and failed to give parents of 8 schools being closed a notice. Held that this was unlawful. **Directory requirement**: Case: *Coney v Choyce* \[1975\] 1 WLR 422. Failure to post notices near main entrance of two schools BUT there was public meetings, letters, and mention in local newspapers. Therefore, the failure did not prejudice the parties. **[2) Procedural Fairness and Natural Justice ]** \- The rule against bias and the fair hearing rule. **[The rule against bias]**: **Bias**: attitude of the mind which prevents a person from making an objective determination of the issues he has to resolve. -- Lord Philips. There are two types: - Presumed (direct) - Apparently (indirect). **[1) Presumed (Direct) Bias]**- Definition: improper interest in the outcome of the case. Types of interest: - Financial, - Member of a group which is party to the case. Both result in decision maker being automatically disqualified from the making of the decision under challenge. **Financial**- Case: *Dimes v Grand Junction Canal Properties* \[1852\] 3 HLC 759. Held that the Lord Chancellor should not have heard a case regarding a company that he was a shareholder in. In order to trigger automatic disqualification, financial interest must be more than de minimis (Case: *Dimes v Grand Junction Canal Properties* \[1852\] 3 HLC 759). **Member of a group that is party to the case**: Case: *R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte* (No 2) \[2000\] 1 AC 1. Lord Hoffman was director of a charity linked to party. Apply for automatic disqualification rule. **[2) Apparent (indirect) Bias- ]** Test: would a fair-minded and informed observer having considered the facts conclude that there was a real possibility that the tribunal (decision maker) was biased. Case: *Porter v Magill* \[2002\] 2 AC 357, \[102-103\], (above). Possible failures: - Family relations, - Personal friendships, - Previous expressions of strong views on subject matters etc. Case*: Re Medicaments and Related Classes of Goods* (No 2) \[2001\] 1 WLR 700. **[2) The fair hearing rule]**: **Right to be heard**: Case: *Ridge v Baldwin* \[1964\] AC 40. Acquitted of conspiracy to obstruct course of justice. Judge at trial questioned Ridge's fitness for office. Watch committee dismissed without hearing or notice. Held dismissal was void as it breaches the police discipline regulations and the rules of natural justice. **Fair hearing**: - People affected adversely by a decision should be given a fair hearing to present their side of the story- right to be heard. - Respect for natural justice not just required for judicial hearings- a body must respect natural justice where its decisions affect the rights and other important matters. (Case: *Ridge v Balwin* above.) - Overlap with Article 6 ECHR: a fair and public hearing by an independent and impartial tribunal established by law. **What is fair**: Procedural fairness: a sliding scale. Fairness depends on the circumstances of the case: character of decision-making body; types of decisions it makes; statutory frameworks that it works with. Case: *Lloyd v McMahon* \[1987\] AC 625. General Rule: fairness required when decision impacts upon rights, interests or legitimate expectations. **Oral hearing**: Oral hearings, however, are not necessary in every case in order to ensure procedural fairness. Case: *R (Osborn) v Parole Board* \[2013\] UKSC 61. The more important the decision to be made, the more likely fairness will require an oral hearing. **Duty to give notice/ know the opposing case**: Cannot object to a potentially adverse decision without first being given notice of the case being made them- no opportunity to object and make representations. Case: *R v Secretary of State for the Home Department ex parte Al Fayed* \[1997\] 1 All ER 228. Egyptian brothers denied entry to UK, held that they were required to give notice of the matters that weighed against their applications being successful. Decision maker is often required to support their decision with reasons, but this is not always the case: - Case: *R v Secretary of State for the Home Department, ex parte Doody* \[1994\] 1 AC 531. Does not recognise a general duty to give reasons. - Case*: R v Higher Education funding Council, ex parte Institute of Dental Surgery* \[1994\] 1 WLR 242. No general duty but classes of cases exist where there is duty e.g., personal liberty or where decisions appear aberrant. - Case: *Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council* (1993) 66 P & CR 263. Where reasons are given they must be adequate. Decision makers must also be impartial and openminded. **Legitimate expectation**- A procedural legitimate expectation may give rise to procedural protection: - Promises to follow a procedure. - Has a policy of following a procedure. - Has a practice of following a procedure. **[1) Promises to follow a procedure]**. Case: *R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operator's Association* \[1972\] 2 QB 299. Local authority had power to grant taxi licenses. Without consultation, local authority informed the Association that 350 licenses would be the new limit, then 450, and then removed entirely. Court of Appeal held that there was a procedural legitimate expectation -local authority should have honoured their promise to consult the Association first before rendering a decision. **[2) Has policy of following a procedure]**:\ Case: *R v Secretary of State for Home Department, ex parte Khan* \[1984\] 1 WLR 1337. Wanted to adopt nephew from Pakistan, Home office explained policy on adoption stating four criteria. Entry was refused despite criteria as they added fifth criterion. Held that the legitimate expectation should have been complied with. **[3) Has a practice of following a procedure:]**\ Case: *Council of Civil Service Unions v Minister for the Civil Service* \[1985\] 1 AC 374. The Prime minster decided members of GCHQ could no longer be members of trade unions for national security reasons. They argued that previous changes to employment were implemented following consultation. Held that usually as this legitimate expectation arose, but national security was good reason to not consult. Summary: Procedural Impropriety\ 1) Compliance with Procedure - 'Mandatory' Requirements - 'Directory Requirements' 2\) Procedural Fairness and Natural Justice\ 1. Rule Against Bias - Presumed (Direct) Bias - Apparent (Indirect) Bias 2\. Fair Hearing Rule - Right to be heard - Oral hearings - Duty to give notice/know the opposing case - Duty to Give Reasons - Legitimate Expectation **[Ouster clauses- ]** **[Meaning]**- **Prohibiting judicial review**- Ouster clauses are also known as preclusive, exclusion, finality or privative clauses. **The problem**- Rule of law vs parliamentary sovereignty. **Parliamentary sovereignty**- Parliament has the right to make or unmake any law it chooses, and no person or body has the right to override or unmake these laws. Case: *Jackson v Attorney General* \[2005\] UKHL 56. - In exceptional circumstances involving the attempt to abolish judicial review from the role of the court, the house of lords or supreme court may have to consider whether this is a constitutional fundamental which can be abolished. -- Lord Steyn. - The court will treat with particular suspicion any attempt to do this- Baroness Hale. - The rule of law is the ultimate controlling factor on which the constitution is based- Lord Hope. See also Case: *AXA General Insurance v Lord Advocate* \[2011\] UKSC 46, per Lord Hope, especially \[50\]-\[51\]. **Judicial approach**- The supervisory jurisdiction of the courts over inferior tribunals and administrative bodies can be removed where clear words are used. Case: *Smith, Lluellyn v Comrs of Sewers* (1669) 1 Mod 44. You cannot oust the jurisdiction of the court without particular words. Case*: R v Moreley* (1760) 2 Bur 1041. The jurisdiction is not taken away expect by express words. Case: *R v Medical Appeal Tribunal, ex parte Gilmore* \[1957\] 1 QB 574. It is very well settled that the remedy of certiorari (quashing order) is never to be taken away by any statute except by the most clear and explicit words. Final is not enough, it means without appeal but judicial review is not an appeal. **[The Anisminic case: ]** **Case: Anisminic Ltd v Foreign Compensation Commission \[1969\] 2 AC 147**. The Foreign Compensation Act 1950, section 4(4) '\[T\]he determination by the Commission of any application made to them under this Act shall not be called in question in any court of law'. Held that the s4(4) only protected decisions of the commission which were not null and void as a result of an error. The commission had acted ultra vires and were not protected. They made an error of law. **Significance of the decision**:\ Case set precedent that ouster clauses shall have no effect where an error of law relating to jurisdiction can be identified. The decision makers decision cannot be deemed valid. The exclusion clause cannot apply. Ouster clauses can only apply to lawful decisions. Anisminic was used later by courts for a creation of a general principle that all errors of law are jurisdictional confirmed in: Case: *R v Lord President of the Privy Council, ex parte Page* \[1993\] AC 682. **The privacy international case**: Case: *R (Privacy International) v Investigatory Powers Tribunal* \[2019\] UKSC 22. Regulation of Investigatory Powers Act 2000, section 67(8) 'Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court'. Privacy international made complain to the IPT against the use of thematic warrants. The accused GCHQ of hacking computer networks unlawfully. Dismissed by IPT. High court upheld the ouster clause, court of appeal dismissed appeal. Supreme Court had to decide: - Whether s67(8) ousts supervisory jurisdiction of high court to quash judgement. - Whether and, if so, what principles may parliament legislate to oust such jurisdiction. The decision (4:3) held that the supervisory jurisdiction was not excluded, not clearly enough. Complete exclusion of judicial review is not permitted. Up to courts to decide lawfulness of purported ouster clause. **[Judicial review and courts act 2022]**- Amends the TCEA 2007, made two important changes: - Remedies: discretion to suspend quashing orders and their retrospective effect. - Abolition of cart judicial reviews. Judicial Reviews on the grounds of error of law or fact (illegality) -- an ouster clause. - Illegality (other than errors) - Procedural irregularity, including the principles of natural justice - Irrationality (as not mentioned at all in Act). Case: *R (Oceana) v Upper Tribunal* \[2023\] EWHC 791 (Admin). Home secretary refused leave to remain. Appealed first. Finally sought to bring review of upper tribunals decision on basis that it breached the rules of natural justice/ made an error of law. Section 11 TCEA 2007, it did not fall under a s4(c)(ii) exception. Therefore, the will of parliament cannot be ignored. **[Tribunals]**- **The importance of tribunals**: Just as important and fundamental as right of access to ordinary courts. Case: *R v Secretary of State for the Home Department, ex p Saleem* \[2001\] 1 WLR 443. (above) They are beneficial for: - Expense and expedition, - Informality and communication. - Personnel and representation. - Technicality and specialisation. - Structure and organisation, enabling role. Tribunals can overturn initial decisions, and substitute it with their own. Can be fact finding and apply those facts to the law. Both legal and non-legal expertise. But they are statutory bodies so their powers are limited by statute. **The work of tribunals**: Highly variable and can involve a range of diverse matters: - Appeals against refusals of asylum, - Challenges to income tax decisions by HMRC. - Appeals against parking offences. - Appeals against refusal of social security benefit by Department of Work and Pensions. **The benefits of tribunals**- COST: Some appeals are free, lower or no legal fees / less need for legal representation\ ACCESS: Tribunals located across the country, designed to be less formal and procedurally burdensome than the courts\ EXPERTISE: Greater level of expertise than the courts due to tribunal specialism in specific public law areas.\ SPEED: Simpler procedures and increased specialism is designed to make the tribunals quicker than the courts. **[Tribunal system]**: **History of tribunals**: - General commissioners of income tax (abolished in 2009) were created in 1798. - Growth in tribunals accelerated in twentieth century, especially post WW2. - Tribunal mostly created on an individual and ad hoc basis. - Closely connected to the executive rather than the judiciary and designed to deal with specific policy areas. **Legatt review 2001**- Two advantages- - Mixture of legal and expert assistance. - Preparation and hearings simpler and more informal. But development being ad hoc meant it wasn't very systematic. Independence of tribunals was a problem as they were paid for by departments and staff appointed by ministers- breach of Article 6 ECHR. Recommendations: same independence as courts and be under a single department. Period of reform in Scotland: Scottish civil courts review by Gill. Report on tribunals in Scotland by Philip, mentioned them being complex, fragmented, and incoherent. This led to the Tribunals (Scotland) Act 2014. **Tribunals now placed within civil justice**- Her majesty's courts and tribunal service: UK courts and tribunals. Scottish courts and tribunal service: Scottish courts and tribunals. Independent review and further reform: Scottish civil justice council, administrative justice and tribunals council. Scottish tribunals nd administrative justice advisory committee. **Tribunals that sit throughout the United Kingdom**\ Tribunals, Courts and Enforcement Act 2007 - First-tier Tribunal - Upper Tribunal to hear appeals - Chambers within First-tier Tribunal -- ticketing of Tribunal judges - Judges, Chamber Presidents and Senior President Tribunals that sit in Scotland alone\ Tribunals (Scotland) Act 2014 - First-tier Tribunal - Upper Tribunal to hear appeals - Chambers within First-tier Tribunal - Members, Chamber Presidents and President **Tribunals, Courts and Enforcement Act 2007**-\ Section 1: Amended Constitutional Reform Act 2005, Guarantee of judicial independence applies also to tribunal judiciary\ Section 2: Created post of Senior President of Tribunals. A UK post and equivalent to Lord Chief Justice. Responsible for representing views of tribunal judiciary and may make written submissions to Parliament (Schedule 1, Part 4). A Lord Justice of Appeal (Court of Appeal). Section 44: Administrative Justice and Tribunals Council, Established responsible for: - \(1) Reviewing and reporting on the constitution and the workings of\ tribunals; - \(2) Considering and reporting on any other matter relating to tribunals or any other important matters; - \(3) Considering and reporting on any matter relating to tribunals referred to the Council. BUT -- Administrative Justice and Tribunals Council abolished in August\ 2013 by the Public Bodies Act 2011. No replacement body as of yet. **Tribunal service-** April 2006- tribunal service. Administrative support for tribunals for greater independence from government. April 2011- HM courts and tribunal service. Tribunal merged with HM Court service. Unified structure for administration of courts and tribunals across UK (not devolved ones). Executive agency sponsored by the ministry of justice- department responsible for all policy regarding courts, legal aid, sentencing etc. **Administration**- - Head of the ministry of justice is the secretary of state for justice and lord chancellor. - Courts Act 2003, s1(1) Lord chancellor under duty to ensure efficient and effective system of support for all courts. - There can also be Court Boards which review administration of courts and make recommendations to Lord Chancellor. - Civil justice council; family justice council; family procedure rules committee; criminal justice council; criminal justice board etc. **Tribunals, Courts and Enforcement Act 2007**- Created a two-tier system of tribunals. **First tier tribunal**- First-tier Tribunal (inferior court) has 7 chambers: - Social Entitlement Chamber - Health, Education and Social Care Chamber - Taxation Chamber - General Regulatory Chamber - Immigration and Asylum Chamber - War Pensions and Armed Forces Compensation Chamber - Property Chamber - First-instance jurisdiction (but may include appeals from an administrative judgment). **Tribunals with jurisdiction over Scottish cases-\ **Some tribunals are organised throughout the United Kingdom e.g. - Immigration and Asylum Tribunal - Social Entitlement (Social Security and Child Support) - Employment Tribunal (but with a separate Scotland division) Some tribunals sit in Scotland alone e.g. - Council Tax Reduction Review Panel -- Glasgow - Pensions Appeals Tribunal -- Edinburgh - Mental Health Tribunal for Scotland -- due to become part of UK organisation... date delayed. **Upper Tribunal**- Upper Tribunal (superior court) has 4 chambers: - Administrative Appeals Chamber - Tax and Chancery Chambe - Lands Chamber - Immigration and Asylum Chamber Appeals from First-tier Tribunal (although some first- instance jurisdiction). **Tribunal "hearings"-** - Usually chair legally qualified and now called "judge" - No legal garb worn - Members selected for their expertise/experience in the subject matter - Some tribunals expect all evidence in writing -- witnesses only for clarification or cross examination - Some decisions made by tribunal judge sitting alone, as a paper exercise - Most held in dedicated tribunal suites around the country - Local justice, may be shared by different tribunals, with shared administrative support - May sit outside such venues; Mental Health tribunals may sit in designated Psychiatric hospitals. **Conduct at tribunal-** - Attempt to be informal- some less than others, - Enabling role- may ask for more information. - Some have preliminary hearings to determine future procedures. - Aim for ability of parties to conduct in person. - Role of lawyers/advisers may have to be handled differently in courts from tribunals. - Law society of Scotland, Code of Conduct for Mental Health Tribunal work. **[Appeals and judicial review- ]** **Appeals Process**- - TCEA 2007, S 11: appeals from First-tier Tribunal to Upper Tribunal - TCEA 2007, s 13: appeals from Upper Tribunal to Court of Appeal (Civil Division) - Further appeals permitted on matters of law only and only when leave from appeal granted by Upper Tribunal or Court of Appeal - Criminal Justice and Courts Act 2015, Part 3, s.64: amends TCEA 2007 (s.14A) to allow appeals from the Upper Tribunal directly to the UK Supreme Court where 'a point of law of general public importance is involved' (UK Supreme Court must grant permission) **Judicial review jurisdiction**- - TCEA 2007, s 15: Upper Tribunal has judicial review jurisdiction equivalent to High Court - Application for judicial review can begin in Upper Tribunal where four conditions are met (s.18): 1. Upper Tribunal can grant remedy requested 2. Application cannot call into question anything done by Crown Court 3. Application falls, where relevant, within class of applications specified by Lord Chief Justice under Constitutional Reform Act 2005 4. Presiding judge at hearing is a High Court or Court of Appeal judge (equivalent in Scotland). **Judicial Review of Upper Tribunal-** - Decisions of Upper Tribunal normally be appealed to Court of Appeal - However, leave of appeal must first be granted by Upper Tribunal - If leave of appeal refused, an applicant may judicially review the decision (the Upper Tribunal is a statutory body which must comply with its statutory limits). Case: *R (Cart) v Upper Tribunal* \[2011\] UKSC 28. Appealed against rejection of claim. Upper tribunal refused permission to appeal to upper tribunal. No route of appeal under 2007 act. Cart sought judicial review on upper tribunals decision through court system. UK Supreme court held there were no ouster clauses restricting judicial review. However, review subject to second appeal criteria (now in Civil procedures Rules) in case concerning an important point of principle or practice or some other compelling reason. **Judicial Review and Courts Act 2022-** Made 2 important changes to judicial review: - Remedies: discretion to suspend quashing orders and their retrospective effect - Abolition of 'Cart' judicial reviews - Amends the TCA 2007 to exclude 'Cart' Judicial Reviews on the grounds of error of law or fact (illegality) -- an ouster clause Judicial review still permitted in relation to: - Illegality (other than errors) - Procedural irregularity, including the principles of natural justice - Irrationality (as not mentioned at all in Act. **[Ombudsmen]**- **Overview**: Ombudsman means complaints man. The role and purpose is to investigate complaints against public bodies brought by members of the public, it is a non-legal inquisitorial process. Increasingly important alternative method of ensuring administrative justice. **Scope of Ombudsman Role**- To investigate complaints of maladministration. Where maladministration found: - Ombudsmen must provide redress for the individual - Ombudsmen must investigate the reasons for maladministration - Ombudsman must make recommendations on how procedures can be improved to avoid maladministration in future. - Ombudsmen are not there to punish public bodies, Role is to support and assist public bodies to improve the delivery of public services. Benefits are that they are independent, free, non-adversarial, and acts on behalf on the complainant. **Ombudsman in the UK**- Parliamentary and health service ombudsman: in England and Wales is combined with NHS. In devolved countries would hear complaints from UK central government. Local government ombudsman and independent housing ombudsman hear English complaints. Scotland has public services ombudsman, as does Wales and Northern Ireland. **Parliamentary Ombudsman**- - Parliamentary Commissioner Act 1967: created Parliamentary Ombudsman (Parliamentary Commissioner for Administration) - Appointed by Crown for 7 year. - Can only be removed by a vote of both Houses of Parliament - Combined with Health Service Ombudsman since 1993 in England (Health Services Commissioners Act 1993). **Powers of Parliamentary Ombudsman**- - MP Filter: Ombudsman can only investigate a complaint made to an MP (Parliamentary Commissioner Act 1967, s.5) within 1 year (Parliamentary Commissioner Act 1967, s.6) - Designed to preserve traditional mechanism of political accountability i.e.\ where constituents raise their concerns about the conduct of government\ with their MP - Criticised for preventing direct access to ombudsman by members of the public. - Removal of the MP Filter recommended by the Public Administration Committee, the Parliamentary Ombudsman, and the Gordon Report. **Injustice due to Maladministration**- - Parliamentary Commissioner Act 1967, s.5: Ombudsman may investigate action resulting 'in a written complaint... made to a member of the House of Commons by a member of the public who claims to have sustained 'injustice in consequence of maladministration' - 'injustice' interpreted flexibly, therefore the Ombudsman has a broad jurisdiction - 'injustice' can include a sense of 'outrage' without any financial loss (see R v Parliamentary Commissioner for Administration, ex p Balchin (No 1) \[1997\] JPL 917). **What is maladministration?**- - Term is undefined in the Parliamentary Commissioner Act 1967 - Maladministration not solely a legal concept - Focus is on process of decision-making rather than the merits of the decision made (s.12 of the 1967 Act) - A complaint to the Ombudsmen is therefore not an appeal - 'Crossman Catalogue' -- Richard Crossman's view on what maladministration includes. **Crossman Catalogue**: 1. 'Neglect, inattention, delay, incompetence, ineptitude, perversity, arbitrariness and so on' 2. Rudeness 3. Unwillingness to treat the complainant as a person with rights 4. Refusal to answer reasonable questions 5. Neglecting to inform a complainant on request of his or her rights or entitlement 6. Knowingly giving advice which is misleading or inadequate 7. Ignoring valid advice or overruling consideration which would produce an uncomfortable result for the over-ruler 8. Offering no redress or manifestly disproportionate redress 9. Showing bias on any ground 10. Omission to notify those who lose a right to appeal 11. Refusal to informal adequately of the right of appeal 12. Faulty procedures **Principles of Good Administration** Online Booklet: Principles of Good Administration. Contains advice by Ombudsman to public bodies on how to behave appropriately in order to avoid maladministration\ The Principles: - Getting it right - Being customer focused - Being open and accurate - Acting fairly and proportionately - Putting things right - Seeking continuous improvement. **Scottish Public Services Ombudsman (SPSO**)-\ Scottish Public Services Ombudsman Act 2002, Complaints by members of the public about public services in Scotland including:\ ◦ Scottish Government\ ◦ 32 Local Councils\ ◦ NHS\ ◦ Housing Associations They also share learning to improve service delivery across public services. Awareness raising activities with general public and bodies\ under its jurisdiction Promotes good complaints handling by public service providers. **Scottish Public Services Ombudsman Act 2002-** - Outlines role of Ombudsman in Scotland - Terms of appointment: Nominated by Scottish Parliament and appointed by HRH - Appointed for Five years, with eligibility for a second terms - Created a 'one stop shop' - Combined previous ombudsman offices - Role not as a watch dog or regulator - The role is to give an independent and impartial decision on a complaint. **Scotland: process\ **Member of the public claims to have suffered injustice / hardship as a result of\ maladministration or service failures. Complainant exhausted the formal complaints procedures of the relevant organisation e.g NHS. Independent and impartial advice on complaint. SPSO not subject to the direction or control of Scottish Government or Parliament. But accountable to Scottish Parliament (Annual report) Reports of investigations: - Laid before Parliament - Sent to the complainant - Sent to the body complained about - Sent to Scottish Ministers. SPSO: Includes appeals and complaints by students regarding decisions and actions by\ Universities and Colleges.\ If.... a student believes that the University has failed to follow its procedures in arriving at a decision on the appeal, s/he may ask for an external procedural review to be undertaken by the Scottish Public Services Ombudsman (SPSO)\ - University of Aberdeen: Policy and procedures on appeals (August 2024). **[Process, remedies, and enforcement]**- **Three step process**: 1. Does the complaint received fall within the remit of the Ombudsman. 2. Ombudsman decides whether or not to investigate. 3. Ombudsman then investigates the complaint. Ombudsman has extensive powers to request evidence (compelling witnessed to give evidence and ordering disclosure of documents) and investigations take place in private. **Remedies**- - Following a finding of maladministration, ombudsman publishes a report with recommendations. - Report sent to MP who referred the complain and to the public body being complained about. - Remedies include: - An apology, - Review of decision. - Compensation. - Wider recommendations about the process can also be made. **Enforcement-** - Ombudsman recommendations not legally binding - But evidence strongly suggests that recommendations overwhelmingly accepted by public bodies - Parliamentary Commissioner Act 1967, s.10(3):\ Ombudsman has power to lay a report before both Houses of Parliament where considered 'that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has been, or will not be, remedied'. **SPSO: remedies and enforcement**-\ Report recommendations to redress the issue Organisations not bound by recommendations But they are usually noted, accepted and implemented, plus\ good practice recommendations None compliance....\ 'Special' report to Scottish Parliament. **Further review-** Ombudsmen decisions are subject to judicial review. **Overview**- - Final stage following complaint or appeal against the decision of a public body - Ombudsman role: independent and impartial review of delivery of public service - Advantages: Oversight and recommendations - Trends or areas of concern can be identified and highlighted - Disadvantages: Very limited enforcement ability Part of the suite of alternative dispute resolution in public and administrative law in UK (note role of SPSO in Scotland). [ **Public inquiries**]- **Nature of public inquiries**- The aim is to investigate and report on a matter that Government can then consider. There are two types: - Part of a decision-making process (ex ante). - High profile inquiry on a matter of public concern (ex post). **Part of the decision-making process**- - Roads, (e.g., the AWPR Aberdeen western peripheral route.) - Wind farms (Hill of Fare) - Upgrade to electricity network (pylons/substations.) - Planning (Town and Country planning (Scotland) Act 1997). - Planning appeals undertaken by an appointed person (reporter). **Process**- - Planning application/ proposal considered as of new. - All material reviewed (development plan/objections.) - Further evidence and detailed information (to address for refusal). - Evidence tested by cross examination. **Decision and review**: - Decision. - Most high profile/ controversial decisions made by Scottish Ministers (inquiry and report with recommendations by appointed person). - Statutory review/ judicial review of decision. **High profile inquiry on a matter of public concern (ex post):** - To investigate what went wrong and what changes for future prevention. - E- petitions. **Role of public inquiries 'public concern':** House of Lords select committee on inquiries act 2005, the Inquiries Act 2005: post legislative scrutiny (HL 143, 2013-14), para 9: - Establishing the facts (important where disputed or unclear). - Determining who is accountable. - Deciding what lessons can be learned and making appropriate recommendations for preventing the issue from arising again. - Allaying public disquiet and restoring public confidence. - Catharsis. - Developing public policy. **Inquiries under the UK government**- - Independent Inquiry into Child Sexual Abuse - Undercover Policing Inquiry - Grenfell Tower Inquiry - Infected Blood Inquiry - Manchester Arena Inquiry - UK Covid 19 Inquiry - Post Office Horizon IT Inquiry - The Dawn Sturgess Inquiry **Devolved government inquiries**- - Edinburgh Tram Inquiry (Scotland) - Scottish Child Abuse Inquiry (Scotland) - Sheku Bayoh Inquiry - Scottish Covid 19 Inquiry **How is a public inquiry created**: - Specific statutory power, - Inquiries act 2005 - Royal prerogative. **1) Specific statutory power:** - Statute can provide specific powers to establish a public inquiry. - Example, the Police Act 1996, s49 (1) 'The Secretary of State may cause a\ local inquiry to be held by a person appointed by him into any\ matter connected with the policing of any area' (since repealed\ by the Inquiries Act 2005.' - Health and Safety at Work etc. Act 1974, s.14(2)(b): The\ Executive may 'authorise another person to investigate and\ make a special report into any such matter' - The Offshore Installations (Public Inquiries) Regulations\ 1974 established The Piper Alpha Inquiry. **2) Inquiries Act 2005:** - Common rules and framework for a public inquiry. - Decision as to hold an inquiry rests with Government, not Parliament - EXAMPLE: Leveson Inquiry (An Inquiry into the Culture, Practices and Ethics of the Press) - Mid Staffordshire Hospital (The Mid Staffordshire NHS Foundation Trust\ Public Inquiry. **3) Royal prerogative:** Non statutory and mostly used to investigate government and other public bodies. They can be heald private as a result. But unlike statutory inquiries they do not have the same subpoena powers and powers to take evidence under oath. Example, The Bulter Review (Review of intelligence on weapons of mass destruction). **Terms of reference**: Government decides on what the terms of reference of any inquiry is e.g., the inquiry scope. For example the Grenfell tower inquiry. **[Procedure]**: **Flexible procedure**: - Inquiries act 2005, s 17 Chair decides procedure to be followed. - Inquiries act 2005, s18: - Presumption that any inquiry will hear evidence in public. - Chair required to take reasonable step to ensure attendance by the public and media or facilitate simultaneous transmission of proceedings. - Public access can be restricted where helps fulfil terms of reference or is in public interest e.g., national security. Case*: R v Secretary of Health, ex parte Wagstaff* \[2001\] 1 WLR 292. Secretary of State for Health decided that the Harold Shipman Inquiry should be in private. Decision subject of judicial review on the grounds of irrationality. The Court held decision had irrational. Court said there should be a presumption in favour of holding an inquiry in public. **Inquiries (Scotland) Rules 2007:** 'Core participants' of persons who: - \(a) played, or may have played a direct and significant role in relation to the matters of which the inquiry relates. - \(b) have a significant interest in an important aspect of the matters to which the inquiry relates; or - \(c) may be subject to significant or explicit criticism. Inquisitorial- - Unsurprisingly, inquiries are meant to be inquisitorial rather than adversarial - They are focused on fact-finding rather than determining civil or criminal liability - Questioning undertaken on behalf of the Chair and panel of assessors by 'Counsel to the Inquiry' i.e. a barrister appointed to the inquiry (see: Post Office Horizon IT Inquiry) - Evidence taken in 'chapters' (blocks) **[Publication of an inquiry]-** **Maxwellisation process**: - Before Inquiry's report finalised & released, 'warning letters' must be\ sent to those it will criticise (Maxwellisation process) - To enable those individuals an opportunity to respond and put their side forward (right to be heard). **Publication of Report**- - Reports are published in full but parts can be withheld in the public interest (Inquiries Act 2005, s.25(4)-(5)) - Copy sent to Minister who initiated the inquiry - Copies laid before Parliament and/or the devolved legislatures (where relevant) accompanied by a ministerial statement and possibly a debate. **Impact of Inquiries**: - Recommendations of an inquiry are not legally binding - No mechanism for the inquiry to enforce their recommendations - Inquiries Act 2005, s.14: once an inquiry has reported and completed its terms of reference, it comes to an end - Implementation of any findings dependent on ordinary political process, but in particular parliamentary select committees and any decision to investigate implementation of recommendations. **Overview of public inquiries-** - Often 'called for' : those impacted & public - Increasingly important to hold government & public bodies to account - Marked increase in recent years - Set up as Political response to situation.... And / or to establish where law/ policy/ practice failed? - Each Public Inquiry unique and different - Topics, news coverage and accessibility put them in public domain - May be one of several processes (e.g. criminal/ compensation) - Reform: - Use of judges - Role of Parliament in creating Public Inquiry and setting terms of reference - Enforcement.