July 26

Administrative Law Digest

 

This post contains a roundup of recent developments (in and out of courts) and scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

Judicial Developments in Administrative Law

  1. The Hong Kong Court of Final Appeal has dismissed an appeal regarding the constitutionality of a legislative provision, which affects the right to stand for election. The provision bars a legislator who resigned from the Legislative Council from standing in a by-election within 6 months of resignation. The parties had agreed that the appropriate test was the proportionality test. The court found that with regard to the third stage of the test, the standard of “manifestly without reasonable foundation” ought to be applied.
  2. The Supreme Court of New Zealand has denied leave for appeal in a case where an applicant wished to appeal direct from a High Court judgment to the Supreme Court. The case involved the applicant’s social welfare frauds and the chief executive had decided not to write off her debt, which represented the amount by which she was overpaid as a result of her fraud. The court denied leave, as it was not satisfied that “there are exceptional circumstances” warranting the direct appeal.
  3. In India, the Gujarat High Court has dismissed a case brought by Essar Steel Limited against the Reserve Bank of India’s directive on insolvency proceedings. Among other things, the company had argued that the exercise of powers was arbitrary, unreasonable, manifestly unjust and outrageous. The court found that there was no arbitrariness or discrimination.

Recent Scholarship

  1. Brinks, Daniel M. and Abby Blass, Rethinking judicial empowerment: the new foundations of constitutional justice International Journal of Constitutional Law (2017) (they provide an original conceptual framework studying formal judicial power which consists of ex ante autonomy, ex post autonomy and the court’s scope of authority)
  2. Lucy, Juliet, Merits Review and the 21st Century Tribunal, Australian Journal of Administrative Law (2017) (the article examines the constraints on tribunal decision-makers which contribute to the disparity between the theory and practice of merits review and considers whether tribunals’ flexible procedures can and should be used to achieve a greater departure from the adversarial model)
  3. Townsend, Joel, Adequacy of Risk Assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth) Public Law Review (2017) (the article considers how judicial deference has been tested in the context of judicial review of visa cancellation and refusal decisions in Australia, as judges have become concerned about the use of “character cancellation” power)
  4. Wurman, Illan, Constitutional Administration Stanford Law Review (2017) (notes that administrative law rests on the fiction that Congress does not delegate legislative power to agencies and that the administrative state thus exercises only executive power; argues that we ought to accept the delegation of legislative power as a matter of doctrine, to remedy the undermining of separation of powers)
  5. Adams, Thomas, The Standard Theory of Administrative Unlawfulness The Cambridge Law Journal (2017) (argues that unlawfulness in administrative law signals not the invalidity of an administrative act but a duty on the part of the court to invalidate it)
  6. Perry, Adam, The Flexibility Rule in Administrative Law The Cambridge Law Journal (2017) (there is a rule against rigid policies, and the article argues that the justification for this rule is neither legislative intent nor the avoidance of error, but rather the value of participation).
  7. Bell, Joanna, Kent and Oakley: A Re-Examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond Judicial Review (2017) (examines the English Court of Appeal’s two recent decisions, where the court had concluded that the local planning authorities, in failing to provide legally adequate reasons, had acted unlawfully)

Current Events

  1. The US Department of Justice has issued a report criticising the Bureau of Prison’s treatment of inmates with mental illnesses. The report singles out a prison in Pennsylvania, alleging that the institution mistreated prisoners and denied adequate mental health services.
  2. US Democratic lawmakers have filed an article of impeachment against President Donald Trump. The article accuses the President of obstructing justice concerning the on-going investigations regarding the alleged ties between Russia and the Trump administration.
  3. The Indian Supreme Court has ordered the Central Bureau of Investigation (CBI) to probe 95 alleged fake encounter killings in Manipur that involve the army, police and paramilitary forces of India. The CBI is to nominate a group of five officers to form a special investigate team to go through records of these cases and complete the investigation by this year.
  4. The New Zealand Ombudsman office has published a report on an unannounced prison inspection. The office has also stated that such reports would be publicly available from now on as part of the office’s push toward greater transparency.
  5. In Singapore, former presidential candidate Tan Cheng Bock has indicated that he will appeal against the High Court’s decision to dismiss his legal challenge on the upcoming presidential elections. Following Parliament’s amendments to the constitution, the upcoming elections will be reserved for Malay candidates. Tan has contended that the reserved elections should start in 2023 at the earliest.
  6. The UK Parliament has published a bill to sever political, financial and legal ties with the EU. The bill will ensure that all EU laws implemented by Parliament will remain in force after the countries exit, with the exception of the European Communities Act of 1972 which originally made UK a member of the EU.
  7. A Malaysian Minister has said that the Kelantan state government has the power to pass an amendment bill relating to criminal procedure. The amended bill provides for, inter alia, whipping punishment to be executed in public and for religious enforcement officers to handcuff suspects
  8. Five employees of the Canadian Security Intelligence Service have launched a lawsuit against their employer, seeking damages after years of alleged bullying in a workplace they claim is racist, sexist and discrimiantory.