Administrative Law and The Administrative Court in Wales

David Gardner

Description

As we progress into the twenty-first century, Wales is acquiring a new identity and greater legislative autonomy. The National Assembly and the Welsh Government have power to create laws specifically for Wales. In parallel, the judicial system in Wales is acquiring greater autonomy in its ability to hold the Welsh public bodies to account. This book examines the principles involved in challenging the acts and omissions of Welsh authorities through the Administrative Court in Wales. It also examines the legal provisions behind the Administrative Court, the principles of administrative law, and the procedures involved in conducting a judicial review, as well as other Administrative Court cases. Despite extensive literature on public and administrative law, none are written solely from a Welsh perspective: this book examines the ability of the Welsh people to challenge the acts and omissions of Welsh authorities through the Administrative Court in Wales.

Sujets

• Droit et juridique
• Law
• Public

Informations

• Publié par: University of Wales Press
• Date de parution: 20 septembre 2016
• Nombre de lectures: 4
• EAN13: 9781783169344
• Langue: English

Extrait

THE PUBLIC LAW OF WALES
Administrative Law and the Administrative Court in Wales
THE PUBLIC LAW OF WALES
Administrative Law and the Administrative Court in Wales
David C. Gardner LLB (Hons), Administrative Court Office Lawyer for Wales, Barrister of Lincoln’s Inn, Solicitor of the Senior Courts
© David C. Gardner, 2016
All rights reserved. No part of this book may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the University of Wales Press, 10 Columbus Walk, Brigantine Place, Cardiff CF10 4UP.
The views expressed in this text are those of the author, and do not necessarily reflect those of Her Majesty’s Courts and Tribunals Service or the Ministry of Justice.
The content of this publication does not constitute legal or other professional advice, and should not be relied upon as such. While every reasonable effort has been made to ensure that the content is accurate and up to date, any reliance on the content is solely at the user’s own risk.
www.uwp.co.uk
British Library CIP Data A catalogue record for this book is available from the British Library.
ISBN 978-1-78316-932-0 eISBN 978-1-78316-934-4
The right of David C. Gardner to be identified as author of this work has been asserted in accordance with sections 77 and 79 of the Copyright, Designs and Patents Act 1988.
Series Preface
F or several centuries after the union of the two countries under the Tudors, the laws which applied in England and the laws which applied in Wales were almost exactly identical. Although administered differently in Wales by the courts of Great Session, the laws were not different. Only in the nineteenth century, barely half a century after the abolition of the Great Sessions in 1830, did laws begin to be made for Wales which did not apply in neighbouring England. The number of such laws however remained small when compared with those which were common to both countries. England and Wales was a single law district with a single law – the law of England and Wales, which was in reality English law.
Devolution has changed that situation significantly. The creation of the National Assembly for Wales and its subsequent acquisition of primary law-making powers has meant that there is now a growing number of differences between the laws which apply in Wales and those which apply in England. Although in the majority of cases, the laws of the two countries remain the same, there is an increasing divergence in the rules relating to those matters which have been devolved. In truth, there are now three bodies of law in England and Wales: one which applies only in Wales; a second which applies only in England, and a third which applies in both countries. Whenever the National Assembly legislates for Wales or the United Kingdom Parliament legislates only for England, the divergence increases. As that divergence increases, so does the importance that lawyers, law students and the public should be able to inform themselves of what the law is in Wales. People need to know the laws which govern their lives from the perspective of the society in which they live. In both countries, lawyers need to know what the law is on either side of the border.
The temptation has been to present the law which applies in Wales in terms of the law which applies in England, while merely noting the differences. As divergence increases, that approach becomes not merely unhelpful from a Welsh perspective, but unacceptable. The purpose of this series therefore is to present to the professions and to the public an account of the law as it applies in Wales in the areas where there is now divergence, and in so doing to both redress the deficit and provide the foundation for a legal literature to serve the distinct needs of Wales.
Thomas Glyn Watkin
Contents
Series Preface
Foreword
Preface
Acknowledgements
Note on the Text
List of UK Statutes
List of UK Statutory Instruments
List of Acts of the National Assembly
List of Assembly Measures
List of Welsh Statutory Instruments
List of Conventions
List of European Treaties
List of Cases
Practice Directions, Notes and Statements
1 Historical Introduction
Introduction
Prehistory and the Romans
The Welsh Princes
After the Welsh Princes
The Legal Union of England and Wales
The Establishment of the Current Judicial System in England and Wales
Modern Development of Administrative Law and the Crown Office/Administrative Court Office
The European Element
The Road to Devolution
The Government of Wales Act 1998
The Government of Wales Act 2006
Conclusion
2 The Administrative Court in Wales: Creation and Jurisdiction
Introduction
Creating the Administrative Court in Wales
The Current Arrangement for the Administrative Court in Wales
The Jurisdiction of the Administrative Court in Wales
The Western Circuit
Conclusion
3 Administrative Law
Introduction
Overview
Unlawfulness
Unreasonableness
Procedural Impropriety
Human Rights
Conclusion
4 Public Law Defendants in Wales
Introduction
Public Bodies – Defendants in Administrative Court Cases
United Kingdom Government
The National Assembly for Wales
The Welsh Government and the Welsh Ministers
Local Government
Other Welsh Public Body Defendants
Conclusion
5 Judicial Review
Introduction
Establishing the Parties
Pre-Action Considerations
Representation, Funding and Advice
An Overview of the Judicial Review Procedure
Lodging the Claim
Interim, Urgent, and Pre-Action Applications
The Acknowledgement of Service
Permission to Apply for Judicial Review
The Substantive Judicial Review
Remedies
The Role of the Upper Tribunal in Judicial Review Proceedings
The Planning Court
Conclusion
6 Non-Judicial Review Administrative Court Procedures
Introduction
Pre-Action Conduct
Statutory Applications
General Statutory Appeals
Appeals By Way of Case Stated
Habeas Corpus
Committal for Contempt
Devolution Issues in Court Proceedings: Part 2 of Schedule 9 to the Government of Wales Act 2006
Conclusion
7 Consequential and Ancillary Orders in the Administrative Court
Introduction
Ending a Case
Costs
References to the Court of Justice of the European Union
Appeals
Enforcing After Non-Compliance with an Order of the Court
Conclusion
Annex A – Part 54 Civil Procedure Rules
Annex B – ACO Wales Listing Policy
Annex C – Contact Details
Annex D – Addresses for Service of Central Government Departments
Annex E – Judicial Review Checklist
Annex F – ACO Wales Statistics
Annex G – Pro Formas
Annex H – The Legal System of England and Wales
Bibliography
Notes
Foreword
J udicial review, the mainstay work of the Administrative Court, derives from the ancient prerogative writs whereby citizens directly petitioned the monarch for relief against the acts done in the monarch’s name. As a result, the jurisdiction of the court has historically been particularly metrocentric. Until very recently, all claims had to be brought, and heard, in London.
That has now changed. From 1999, claimants were able to issue claims in Cardiff – although they were still generally managed and heard in London. More fundamentally, in 2009, four out-of-London Administrative Court Offices were opened, where claims concerning the relevant circuits can be issued, managed and heard. Two Queen’s Bench Division High Court Judges were appointed to administer this work, and, with other High Court Judges and Deputies, to hear it. Each of the English centres – in Birmingham, Manchester and Leeds – has, in its own way, been successful. About one-quarter of Administrative Court cases are now dealt with outside London. Many have a high level of local public interest, and these offices not only enable parties to have their cases managed and heard locally, but also enable all those with an interest in the case conveniently to attend hearings. This has been an important initiative in favour of access to justice.
The fourth office to open was that of the Administrative Court in Wales. However, whilst it too offers local access to justice, this office is in a somewhat different position to the regional offices in England. Devolution in Wales – a process which appears not yet to have run its full course – made it imperative that challenges to decisions of the Welsh Ministers and other devolved institutions could be made in Wales; hence, the setting up of the post box facility in 1999. From 2009, that became a fully fledged Administrative Court Office, with, in addition to staff, a dedicated High Court Liaison Judge. It is now inconceivable that the challenge to a Welsh decision, made in Wales by a Welsh institution and affecting the people of Wales, is heard anywhere but in Wales. Furthermore, although the court office is in Cardiff, in recognition of the geography of Wales, the Administrative Court in Wales sits throughout the country, in any court appropriate to the subject matter, North or South.
As with the Masters and lawyers who assist with the Administrative Court in London, each of the out-of-London centres has a dedicated lawyer, who is vital to the efficient working of the office. David Gardner has been the Administrative Court lawyer in Cardiff since the office opened. The judges and users of the centres outside London owe him – and his colleagues in the English regional offices – a substantial debt for their contribution to the success of the initiative to enable public law work to be issued and heard outside London. David has a unique perspective of where the Administrative Court in Wales now stands – and how it has got there – as well as what th