The Nature and Scope of Administrative Law

It is the function of Administrative law to ensure that good administration is achieved fairly and justly. A brief and succinct definition of administrative law has been provided by Professor Wade when he states that, it is the law relating to the control of governmental power. According to Professor Fiadjoe, in distinguishing the scope of Administrative law from Constitutional law, he stated that the former is concerned with essentially superintending! the day to day e"ercise of the functions of public authorities, whereas, Constitutional law is basically concerned with the allocation of specific functions to public authorities. It is to be noted as adverted to earlier that even this demarcation, though helpful in a broad practical way, cannot be ta#en too literally and applied too rigidly since the province of Constitutional law is also concerned with regulating the day to day e"ercise of constitutional power by public authorities. Apart from the issue of conceptual purity, there seems to be no practical or logical reasons why the claims and remedies arising out of both Administrative law and Constitutional law should not e"ist side by side. Indeed, the constitutional provisions which stipulate that the courts can refuse to entertain a constitutional claim where a claimant can obtain ade$uate redress in certain circumstances under any other law, see#s to ensure that at the practical level there would be no overlapping and duplication of action. %his allows for judicial and other economies while at the same time permitting the primacy of constitutional claims where it can be shown that though a cause of action may lie in both Administrative and Constitutional law &such as in the case of an abuse of ministerial or other discretion which affects one's fundamental rights. (ote) Camacho v. Collector of Customs [1971] 18 WI 1!9* that the non+constitutional claim does not allow for ade$uate redress. (ote that the case of Camacho is $uoted as an e"ample only in relation to demonstrating the overlapping of claims arising from the factual scenario and it is not given as an illustration of the issue of the ade$uacy or inade$uacy of a non+constitutional form of redress.

In terms of identifying the scope of Administrative law, it is important to note a significant distinguishing feature of departure in the Commonwealth Caribbean from ,nglish Administrative law. For instance, as indicated in w#sht -, Professor Wade e"cluded Parliament for the .egislature from the ambit of Administrative law because as he puts it, Parliament as the .egislature is sovereign and subject to one e"ception &i.e. ,uropean Community law* is beyond legal control.! &/ee Wade 0th edn ch. 1+2* 3ased on the same principle or reason justification used by Professor Wade in e"cluding the e"ercise of legislative power from the province of Administrative law, one could justify the inclusion of this state function within the compass of Administrative law in the Commonwealth Caribbean since the legislatures in the Comm. Caribbean are all subject to legal control, in that they are subject to the control of the respective Comm. Caribbean constitutions, so that unli#e ,ngland, if we accept Professor Wade's argument, the definition of Administrative law in the Comm. Caribbean should be broadened to refer to that law which is concerned with the legal control of the legislative, e"ecutive and judicial e"ercise of /tate power. Another definitional issue that has great conceptual and practical significance is what are the bodies or entities or persons who are properly legally subject to the control of Administrative law4 %he law has developed rapidly in this regard and has moved away from a formal descriptive analysis to a more functional and purposive analysis. %hus, the recent focus of the law is not so much how the body, entity or person has been statutorily described, but rather what is the nature and function of the body, entity or person even if that body, entity or person has no statutory underpinning. %he Courts in this regard see# to find out before they are able to allow judicial review under Public law whether the body, entity or person performs functions having a sufficient public element involving some governmental interest. In doing so, the courts loo# at the nature and purpose of the functions of the entity in $uestion, its impact and conse$uences on the public interest, whether any public funds are being used and other relevant factors. (ote that this analysis is only generally necessary with respect to non+statutory bodies, so that one may say that there is a presumption that statutory or constitutional bodies, entities or persons are subject to the control of judicial review.

The Development of Administrative Law

In the case of v. "#vertising $tan#ar#s "uthorit% e& parte 'he Insurance

$ervice, it was held that though the authority in $uestion ha# no powers grante# to it (% statute or common law) nor an% contractual relationship with the a#vertisers whom it controlle#) %et it was hel# that the authorit% was su(*ect to *u#icial review. %his was found to be so because the authority in the court's view, was clearl% e&ercising pu(lic law functions. In this case, the court applied the reasoning, though not the result, of .ord 5onaldson 67 in the case of v. +anel on 'a,eovers an# -ergers e& parte .atafin [1987] 1 "ll / !01. .ord 5onaldson stated the principle thus, in all the reports) it is possi(le to fin# enumerations of factors giving rise to the *uris#iction) (ut it is a fatal error to regar# the presence of all those factors as essential or as (eing e&clusive of other factors. +ossi(l% the onl% essential elements are what can (e #escri(e# as a pu(lic element) which can ta,e man% #ifferent forms an# the e&clusion from the *uris#iction of (o#ies whose sole source of power is a consensual su(mission to its *uris#iction.

Judicial Review
%his refers to the basic power or jurisdiction of the courts to e"amine or review the e"ercise of /tate power in order to ensure that they act within the scope of their jurisdiction in both procedural and substantive terms. %hus, the basic principle underlying this great power of judicial review is the doctrine or principle of ultra vires. %he term means beyond one's powers!. ,ssentially, the courts pose the general $uestion as to whether the powers e"ercise or sought to be e"ercised, have been or are being validly e"ercised according to law. Conceptually, this issue can be classified in a number of ways. 8ne classification which finds early illustration in our case law is that of substantive or procedural ultra vires. Another important classification is the one developed by .ord 5iploc# in the case of Council of Civil $ervice 2nion v. -inister for the Civil $ervice [198!] "C 371) [1981] 3 "/ 93!. 9ere, .ord 5iploc# classified the basis of judicial review under the three broad heads of )+ -. Illegality :. Irrationality ;. Procedural Impropriety

9e defined illegality to mean that the #ecision4ma,er must un#erstan# correctl% the law that regulates his #ecision4ma,ing power an# must give effect to it. Whether he has or not is par e&cellence a *usticia(le 5uestion to (e #eci#e# in the event of a #ispute (% those persons) the *u#ges) (% whom the *u#icial power of the $tate is e&ercisa(le. It is significant to note here that .ord 5iploc# is using the term illegality in a special and narrow sense, since the term illegality could be understood in the broader sense of encompassing all of the species of ultra vires. .ord 5iploc# then defined the term irrationality to include the Wednesbury principle of unreasonableness as established by the case of "ssoc. +rovincial +icture 6ouses 7t#. v. We#nes(ur% Corp [1918] 1 89 ::3. .ord 5iploc# further amplified the term irrationality in stating that it applies to a #ecision which is so outrageous in its #efiance of logic or of accepte# moral stan#ar#s that no sensi(le person who ha# applie# his min# to the 5uestion to (e #eci#e# coul# have arrive# at it. Whether a #ecision falls within this categor% is a 5uestion that *u#ges) (% their training an# e&perience) shoul# (e well e5uippe# to answer or else there will (e something (a#l% wrong with our *u#icial s%stem. 'o *ustif% the courts e&ercise of this role) resort) I thin, is) to#a% no longer nee#e# to ;iscount a#cliffe<s ingenious e&planation in the case of /#war#s v. 9ar stow [19!0] "C 11 =10> of irrationalit% as a groun# for a courts reversal of a #ecision (% ascri(ing it to an inferre# uni#entifia(le mista,e of law (% the #ecision4ma,er. Irrationalit%) (% now) can stan# upon its own feet as an accepte# groun# on which a #ecision ma% (e attac,e# (% *u#icial review. .ord 5iploc# further described procedural impropriety as being something more than a failure to comply with the traditional rules of (atural <ustice. 9e stated as follows, I have #escri(e# the 3r# hea# as proce#ural impropriet% rather than failure to o(serve the (asic rule of natural *ustice or failure to act with proce#ural fairness towar#s the person who will (e affecte# (% the #ecision. 'his is so (ecause suscepti(ilit% to *u#icial review un#er this hea# covers also failure (% an a#ministrative tri(unal to o(serve proce#ural rules e&pressl% lai# #own in the legislative instrument (% which its *uris#iction is conferre#) even where such failure #oes not involve an% #enial of natural *ustice.