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Administrative Law

Administrative law is a core area that ensures all other bodies of law are upheld. In many respects it's the most important branch of law, because without it, it wouldn't be possible to have other laws. Essentially, administrative law is necessary for the state and government to function.

 

In countries that have a constitution, such as Germany and the USA, this body of law is known as constitutional law. Instead of a constitution the UK has a body of laws, rules, guidelines, and powers that regulate how the country is run, and what organisations and individuals have the power to make and enact decisions. Therefore, this area of law is known as administrative law.

 

Administrative Law and Public Bodies

 

Administrative law regulates how public bodies act in their public capacity. This refers to governmental bodies such as government ministers and departments, local authorities, health authorities, criminal justice authorities including police, courts, and prisons, and regulatory and supervisory authorities.

 

Administrative law decisions affect almost everyone in some capacity, at some point in their lives. For instance, administrative law affects people who claim benefits, who use public health services, are homeless, have disabilities, have mental health problems, or are in prison.

 

Not all actions of public bodies are regulated by administrative law. Typically the “front-facing” activities are deemed public ones. This means activities where the public body interacts with members of the public in its official, meaning its public, capacity. “Back-facing” activities come under private law. For instance, in its capacity as an employer, a public body’s actions are regulated by private law. In its capacity as a public service provider, the same public body’s actions are regulated by administrative law.

 

Public Law Wrongs and Maladministration

 

Public bodies must operate in accordance with administrative law. This means they must:

  • Act lawfully, meaning they must follow the law, must not do things they don’t have the legal authority to do, and must not use their power improperly.

  • Act reasonably.

  • Follow procedures that are fair and just for every individual.

 

Public law wrongs are situations where public bodies don’t act in accordance with these three principles. If situations arise where public bodies violate one of these principles, this maladministration is investigated by an Ombudsman. Some examples of maladministration include: undue delay, inadequate record-keeping, failure to provide information, failure to investigate, failure to comply with legal requirements, and making inaccurate or misleading statements.

 

Challenging Administrative Law

 

When people are affected by decisions made by public bodies, they may have the option of challenging the decision. For instance, someone can challenge a public body if they make a decision the person is unhappy with, if they fail to make a decision, or if there is a delay in making a decision.

 

There are multiple ways to challenge a decision. Some decisions have a right of appeal, which means there is a set complaints procedure a person must follow if they want to lodge an appeal. When a decision has no right of appeal, a challenge must be made by requesting a judicial review. In some situations an appeal can be made by referring the matter to an Ombudsman.

 

Complaints procedures and Ombudsman services are free, and legal representation is not necessary to use them. There is typically a set procedure to follow, and a defined path that is taken to start and move through the challenge process. However, it can take a long time to resolve a complaint via these methods, and they are not suitable to resolve disputes about specific public policies or laws. Depending on the nature of the complaint, a challenge might be made via judicial review if the complainant isn’t satisfied with the outcome of their initial appeal.

 

Judicial review is a process where a decision or action, or a failure thereof, made by a public body is challenged in the Administrative Court. To start this process it’s typically necessary to contact a solicitor for guidance. Requesting a judicial review is time-limited, which means that an individual must make the request within three months of the relevant decision or action. The decision made by the court in a judicial review is legally binding, and the decision made in one case can affect the outcome of similar situations in the future. The downside is that this is not a free or low-cost process, unless the challenger qualifies for legal aid.

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