Elliott & Varuhas: Administrative Law

The fifth edition of Administrative Law has been published by Oxford University Press. The new edition is co-written by Mark Elliott, Professor of Public Law at the University of Cambridge, and Jason NE Varuhas, Associate Professor of Law at the University of Melbourne. The following blogpost is based on the authors’ preface to the fifth edition.

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screen-shot-2016-12-19-at-22-42-39In the three decades since its first edition was published, this book — like English administrative law itself — has undergone many changes. The first two editions, published in 1983 and 1989 and written by Sir Jack Beatson and Martin Matthews, took the form of casebooks in which excerpts from cases and other materials were accompanied by concise but always penetrating commentary. The third and fourth editions, published in 2005 and 2011, were written by Mark Elliott, with Sir Jack Beatson and Martin Matthews serving as consultant editors. The third edition amounted to a fundamental rewrite of the book — a step that was necessary in the light of the 16 year period that had elapsed since the publication of the previous edition, and which involved transforming the book from a casebook into a text and materials book.

This fifth edition forms a further milestone in the evolution of the book, not least because it is the first edition to be produced under the joint authorship of Mark Elliott and Jason Varuhas. While the book remains a text and materials book, the excerpts from cases and the literature that we have included are generally shorter and the text relatively more extensive. At a time when so much information is available online, the value of a book such as this lies in providing students with a sound conceptual framework and source of analysis that they can deploy when navigating the cases and other materials. We have endeavoured in producing this edition not only to supply precisely such a framework and analysis but to challenge readers to think critically about the law. We have also striven to present matters in an objective fashion that enables students to make up their own minds about difficult and contentious issues of theory and policy.

Every chapter has been thoroughly updated, and many chapters have been substantially rewritten. In particular, chapter 15, on the liability of public authorities, has been rewritten largely from scratch. It now focusses on a more select range of issues, and draws out common themes that emerge across the different fields of liability, offering deep insight into the law governing public authority liability and encouraging readers to engage with core issues in greater and more critical depth. Parts of chapter 8, which deals with substantive judicial review, have been fundamentally recast in the light of recent Supreme Court judgments concerning the relationship between the Wednesbury reasonableness and proportionality doctrines and the likely future trajectory of this bellwether area of administrative law.

The chapter on jurisdiction now takes account of the key Supreme Court decisions in R (Cart) v. Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 (which is addressed too in the chapters on tribunals and restrictions on remedies) and R (Jones) v. First-tier Tribunal [2013] UKSC 19 [2013] 2 AC 48. The same Court’s path-breaking judgment in Braganza v. BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661 is examined in the chapter on the scope of public law principles, which also includes a new discussion of the public law-private law distinction.

The chapter on retention of discretion discusses recent developments in the law on delegation of decision-making power, including the Supreme Court decision in R (Bourgass) v. Secretary of State for Justice [2015] UKSC 54 [2015] 3 WLR 457. In the same chapter we identify and examine a sea change in the judicial approach to policy which today, far from being considered a threat to discretionary decision-making, is often seen by the courts as a tool for disciplining the exercise of administrative discretion so that it conforms to the rule of law values of certainty, consistency and openness. Such considerations are, of course, also in play in respect of legitimate expectations; in the chapter dealing with that area, we identify a number of emergent trends and chart a series of crucial recent developments, noting, in particular, the Court of Appeal’s important judgment in R (Patel) v. General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 2801. Chapter 7, which addresses the improper purpose and relevant considerations doctrines, has been thoroughly updated and includes a new discussion of the interaction between the longstanding principle that statutory powers must be exercised consistently with statutory purposes, and newer doctrines requiring adoption of rights-consistent interpretations of legislation. Meanwhile, the chapter on procedural fairness takes account of a number of important recent decisions including that of the Supreme Court in R (Osborn) v. Parole Board [2013] UKSC 61 [2014] AC 1115, and a new section has been added on the fast-developing jurisprudence on the law of consultation.

There have been important developments too in relation to the procedure by which judicial review is undertaken and the restrictions that apply to judicial review. In this area, the book charts the increasingly significant impact of human rights claims on core features of the judicial review procedure, and the pressure such claims have placed on (what remains of) the procedural distinction between public and private law. Our examination of restrictions on remedies takes account of new limitations introduced following recent government consultations on judicial review that were animated by concerns about the volume of judicial review challenges being brought and the abuse of judicial review for political ends. In particular, we examine and consider the likely implications of the statutory ‘no difference’ principle inserted into the Senior Courts Act 1981 by s 84 of the Criminal Justice and Courts Act 2015. Our analysis of the law of standing has been substantially rewritten, not least in order to take account of the Supreme Court’s landmark judgments in AXA v. Scottish Ministers [2011] UKSC 46 [2012] 1 AC 868 and Walton v. Scottish Ministers [2012] UKSC 44 [2013] PTSR 51, while the chapter on remedies notes a series of interesting developments in the law governing stays of proceedings and injunctions in judicial review proceedings.

Finally, the chapters dealing with administrative justice mechanisms — ombudsmen, tribunals and inquiries — have also been thoroughly updated and, in places, rewritten to take account of developments in those areas, including recent and proposed changes to various public sector ombudsmen systems, and the enhanced role now played by the Upper Tribunal in immigration-related matters.

Further information about the fifth edition of Administrative Law can be found on the Oxford University Press website.