Учебное пособие на английском языке
Для студентов юридического факультета
Институт международного права и экономики имени А.С. Грибоедова
кафедрой иностранных языков
С о с т а в и т е л ь – доц. Е.В. Дольникова
Административное право. Administrative Law: Учебное пособие на английском языке. – М.: ИМПЭ им. А. С. Грибоедова, 2008. – 14 с.
Подготовлено на кафедре иностранных языков.
© Дольникова Е.В., 2008
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking*, adjudication*, or the enforcement of a specific regulatory* agenda.
Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.
Administrative law expanded greatly during the twentieth century, as legislative bodies world-wide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.
Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review* that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking.
Administrative law may also apply to review of decisions of so-called quasi-public bodies, such as non-profit* corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.
While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process* (United States) or fundamental justice (Canada).
Judicial review of administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question. This difference is vital in appreciating administrative law in common law countries.
The scope of judicial review may be limited to certain questions of fairness*, or whether the administrative action is ultra vires*. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law).
Administrative law, as laid down by the Suoreme Court of India, has also recognized two more grounds of judicial review which were recongized but not applied by English Courts viz legimate expectation* and proportionality.
The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs* of English law, such as the writ of mandamus* and the writ of certiorari*. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.
Text 3. THE INDEPENDENT AGENCIES
The executive departments are the major operating units of the federal government, but there are many other agencies which have important responsibilities for keeping the government and the economy working smoothly. These are often called independent agencies, since they are not part of the executive departments. The nature and purpose of these agencies vary widely. Some are regulatory groups, with powers to supervise certain sectors of the economy. Others provide special services, either to the government or to the people. In most cases, the agencies have been created by Congress to deal with matters that have become too complex for the scope of ordinary legislation. The Interstate Commerce Commission, for example, was established by Congress in 1887 to curb the growing power of the railroads. In recent years, however, a trend toward deregulation* of the economy has altered the functions* of many federal regulatory bodies. Among the most important independent agencies are the following:
Text 5. OVERSIGHT POWERS OF CONGRESS
Of the numerous techniques that Congress has adopted to influence the executive branch*, one of the most effective is the oversight function. Congressional oversight* prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance*. It applies to Cabinet departments, executive agencies, regulatory commissions and the presidency.
Congress’ oversight function* takes many forms:
The oversight power of Congress has helped to force officials out of office, change policies and provide new statutory controls over the executive. In 1949, for example, probes by special Senate investigating subcommittees revealed corruption among high officials in the Truman administration. This resulted in the reorganization of certain agencies and the formation of a special White House commission to study corruption in the government.
The Senate Foreign Relations Committee’s televised hearing in the late 1960s helped to mobilize opposition to the Vietnam War. Congress’ 1973 Watergate investigation exposed White House officials who illegally used their positions for political advantage*, and the House Judiciary Committee’s impeachment proceedings against President Richard Nixon the following year ended his presidency. Select committee inquiries in 1975 and 1976 identified serious abuses by intelligence agencies* and initiated new legislation to control certain intelligence activities.
In 1983, congressional inquiry into a proposal to consolidate border inspection* operations of the U.S.Customs Service and the U.S.Immigration and Naturalization Service raised questions about the executive’s authority to make such a change without new legislation. In 1087, oversight efforts disclosed statutory violations* in the executive branch’s secret arms sales to Iran and the diversion of arms profits to anti-government forces in Nicaragua, known as the contras. Congressional finding resulted in proposed legislation to prevent similar occurrences.
Oversight power is an essential check in monitoring the presidency* and controlling public policy.
congressional oversight – надзор конгресса
Text 6. PUBLIC INQUIRIES
WE have seen that the Franks committee consluded that tribunals should be regarded as machinery for adjudication* rather than as part of the machinery of administration. The same conclusion is not applicable* to public inquiries, whose role is too deeply embedded in* the whole process of government and administration to permit them to be transplanted into the world of adjudication. We have already examined the attitude of the courts to inquiries in the context of natural justice*. Cases such as Local Government Board v. Arlidge, Errington’s case and Franklin’s case illustrate the difficulties found by the courts in reviewing ministers’ decision made following a public inquiry, particularly over the extent to which holding an inquiry may be regarded as a judicial* or quasi-judicial function. As seen by the Franks committee in 1957, the ‘administrative’ view was to regard the inquiry as a step leading to a ministerial decision in the exercise of discretion*, for which the minister was responsible only to Parliament. By contrast, on the ‘judicial’ view, the inquiry appeared ‘to take on something of the nature of a trial and the inspector to assume the guise of a judge*’, so that the ensuing decision* must be based directly upon the evidence presented at the inquiry*.
to be regarded as machinery for adjudication – считаться орудием осуждения
The Franks committee rejected these extreme interpretations. In the committee’s view, the objects of the inquiry procedures were to protect the interests of the citizens most directly affected by a governmental proposal* by granting them a statutory right* to be heard in support of their objections; and to ensure that thereby the minister would be better informed of the whole facts of the case before the final decision was made. To ensure a reasonable balance* between the conflicting interests concerned, and to see that Parliament’s intention in requiring the public inquiry procedure to be observed was fulfilled, the committee recommended that the individual should know in good time before the inquiry the case he would have to meet;
that any relevant lines* of policy laid down by the ministry should be disclosed at the inquiry*;
that the inspectors who conduct inquiries* should be under the control of the Lord Chancellor, and not under that of the minister directly concerned with the subject-matter* of their work;
that the inspector’s report should be published together with the letter from the minister announcing the final decision*;
that the decision letter should contain full reasons for the decision, including reasons to explain why the minister had not accepted recommendations of the inspector;
that is should be possible to challenge a decision* made after a public inquiry in the High Court, on the grounds of jurisdiction and procedure*.
Except for the recommendation that the corps of inspectors* should be transferred to the Lord Chancellor’s Department, these recommendations were accepted by the government and initially brought into force by administrative action. Moreover, the Council on Tribunals was given power to consider and report on* matters arising put of the conduct of statutory inquiries*; this allows an individual who is dissatisfied with some aspect of a particular inquiry* to complain to the council. In this context, ‘statutory inquiry*’ includes both an inquiry or hearing held by or on behalf of* a minister in pursuance of a duty* imposed by any statutory provision, and also what is known as a discretionary inquiry*, that is an inquiry initiated by a minister other than in pursuance of a statutory duty where such an inquiry is designated for this purpose by statutory instrument*.
Text 8. PROCEDURE
One important feature of the ombudsman* idea is that the ombudsman should be accessible to the individual*. But in Britain the citizen has no right to present his complaint to the Parliamentary Commissioner. In the first instance, a complaint of maladministration* must be addressed by the person who claims to have suffered injustice to an M.P. It is for the M.P. to decide whether to refer the complaint to the Commissioner. Usually a citizen will send the complaint to his constituency* M.P. but the Act does not require this. When the Commissioner receives a complaint from a private person that is clearly investigable*, he may send it with the complaint’s agreement to his M.P., saying that he is prepared to investigate it if the M.P. wishes him to do so. When the Commissioner receives a complaint from an M.P. he must first decide whether it falls within his jurisdiction*. If so, and if he decides to conduct an investigation, he must give the department concerned and any person named in the complaint an opportunity of commenting on any allegations* made. The investigation must be carried out in private*; normally an officer of the Commissioner’s staff examines the relevant department files*. The Commissioner has wide powers of compelling* ministers and officials to produce documents and has the same powers as the High Court in England or the Court of Session in Scotland to compel any witness to give evidence before him. The Commissioner’s investigation is not restricted by the doctrine* of Crown privilege. The only documents which are statutorily privileged are those certified by the Secretary of the Cabinet, with the approval* of the Prime Minister, to relate to proceedings of the Cabinet or a committee of the Cabinet.
When the investigation is complete, the Commissioner must send to the M.P. concerned a report of the results of the investigation. If the Commissioner considers that injustice was caused through maladministration* and has not been remedied*, he may lay a special report before Parliament. Such a report and other communications relating to an investigation are absolutely privileged in the law of defamation*. A minister has no power to veto an investigation, but he may give notice to the Commissioner that publication of certain documents or information would be prejudicial to* the safety of the state or against the public interest and this notice binds the Commissioner in making his report.
The Commissioner has no executive powers. Thus he cannot alter a department decision or award compensation to a citizen, although he may suggest an appropriate remedy. But a minister will be under a strong obligation to accept the Commissioner’s findings and take necessary corrective action. Circumstances might arise in which a report would have such controversial political implications* that a minister could come under pressure* not to accept the recommendations. To give support to the Commissioner in such a situation, and to watch over his work, a select committee is appointed by the House of Commons to examine the reports he lays in Parliament. This committee takes evidence from the departments concerned and reports to the House on the Commissioner’s work. The committee has been successful in helping to ensure the provision by departments of adequate remedies and the improvement of defective procedures, but not in efforts to remove limits upon the ombudsman’s jurisdiction.
Text 10. THE CONSTITUTIONAL AND ADMINISTRATIVE LAW
BAR ASSOCIATION IS A SPECIALIST BAR
ASSOCIATION OF THE BAR OF ENGLAND AND WALES
ALBA is the professional association for practitioners of public law*. It exists to further knowledge about administrative law amongst its members and to promote the observance of its principles.
It is predominantly an association of members of the Bar* but amongst its members are also judges, solicitors, lawyers in public service, academics and students. Students are particularly encouraged to join. Members do not have to demonstrate that they practice administrative law in order to join but are likely to share an interest in this important area of law.
In particular, members of the Association are active participants in the development of judicial review and the interpretation and application of the Human Rights Act. The Association provides a forum for debating the issues which continue to arise in these and other related areas.
ALBA holds meetings throughout the year on topics of interest which mostly take place in the Temple. An annual conference is usually held over a summer weekend.
Regular newsletters are sent to all members. ALBA is an accredited provider* of Continuing Education with both the Bar Council and the Law Society. The Attendance at meetings and the conference attracts credits* for continuing professional development requirements.
ALBA has a permanent representative on the Bar Council in its capacity* as a Specialist Bar Association. It is consulted by the Bar, the Lord Chancellor’s Department and the Court Service about matters affecting practice and procedure in the Administrative Court. Its views are sought* on issues relating to the reform of law.
As a Specialist Bar association, ALBA is required to confine full membership of the association to members of the Bar. Other lawyers and students are welcome to join as associate members.
Text 11. LEGITIMATE EXPECTATION
There is a beguiling attractiveness to the expression ‘legitimate expectation’*, which doubtless explains its use beyond its natural scope and the acceptance by judges of that use. But I have to say I cringe when I see a skeleton argument that asserts, as many do, that a claimant had a legitimate expectation that a public authority would act fairly. A public authority must act fairly full stop. The assertion of a legitimate expectation us wholly unnecessary. And it is equally unnecessary to assert* that a claimant* has a legitimate expectation that a public authority will apply the policy it has adopted to his case. It is a principle if our public law that a public authority must apply its policy to individual decisions to which it is applicable unless it can show that there is good reason to depart from it.
The principle of legitimate expectation was originally developed by the court as a means of elucidating* the requirements of administrative fairness in circumstances in which in private law the acts of a public authority might give rise to an estoppel*: i.e., where there has been a relevant communication by the public authority to the claimant. Its requirements differ from those of estoppel: there is no absolute requirement of reliance by the claimant on the communication. But in my view, the principle should not be applied where when the public authority made its decision the claimant was unaware of the facts giving rise to the supposed legitimate expectation*.
The claimant could not have any expectation of that of which he was ignorant. In such circumstances, his case must be founded on other principles of our administrative law.
Member of ALBA Association
assertion – утверждение
Wade E.C.S., Bradley A.W. Constitutional and Administrative Law / 10th edition by A.W. Bradley. – London; New-York: Longman, 1985.
Shroeder Richard C. An Outline of American Government. – United States Information Agency, 1990.
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