Administrative Law Issues - Essay Example

Administrative law A .Discussions on the importance of the House of Lords decision in R. v. Secretary of for the Home Department ex.parte. Daly (2001) The above case mainly deals with the requirement of proportionality, which is the test in Human Rights Cases. It is based on the premise that decisions to initiate civil action by people in public authority against individuals should be done only with the Court’s permission. It should also commensurate with the objectives which they seeks to achieve by initiating such action, and this should not interfere with the Fundamental Rights of convicts, as is evidenced in the Daly (2001) case. The facts in this case is that the appellant, Daly, a convict, appealed against the searching of privileged legal correspondence held by him by the prison authorities during his absence. He did not object to the searching of the correspondences but only appealed that the search should be conducted during his presence. “He contends only that such examination should ordinarily take place in the presence of the prisoner whose correspondence it is.” (Judgments - Regina v Secretary of State for the Home Dept. House of Lords Ex Parte Daly. 2001). It was felt in this regard that the rights of prisoners for having access to courts needs to be protected. Lord Cooke in this Case, observed that certain rights of people have Fundamental rights such as “access to court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege.” (Judgments - Seals (FC) (Appellant) v Chief Constable of South Wales Police (respondent)). He goes on further to say that restrictions placed on these rights can only be made by expressed words, which are intrinsic for the achievement of the objectives for which the placing of restrictions was intended and with the permission of the High Court for civil cases. (B) Also discuss the reason for the exclusivity principle in judicial review The reason behind the exclusivity principle is to determine whether the claimant needs to seek judicial review for settlement of disputes or should seek some other avenue of legal proceedings like writ, habeas corpus, etc., in initiating action against public authorities. The concept of exclusivity was laid down in the case O’Reilly v Mackman (1983) in which the judicial reviews were claimed to be the exclusive domain for public law suits. In this case, the learned judge, Lord Diplock held that “Judicial Review proceedings were the only appropriate way to begin an action to test public law rights.” (O’Reilly v Mackman (1983). 2006). However, this decision was not followed in several other cases and lately, it has been seen that the decision of a public authority can be questioned by the process of private laws whenever the element of private law is involved, or when situations, similar to private rights are at stake. This has also been amply demonstrated in the decided case of Roy V Kensington and Chelsea. “This is because his claim involved a private law element that was collateral to the public law concerns.” (Roy v Kensington and Chelsea and Westminster FPC (1992). 2006). However, when there is an ambiguity between the public and private laws, the Court has ruled that the judges may take recourse to referring the Hansard as a guide to legislation as decided in the case law Pepper v Hart (Pepper V Hart. 2006). (C) The Barlow Clones investigation by the Parliamentary Ombudsman: In the Barlow Clones case (1988) many poor pensioners lost their life savings and became financially bankrupt. This became a bone of contention regarding the scope of Government responsibility towards public monies and the rapport between the Ombudsman appointed by Parliament and Executive functionaries. In the report presented to the government, the ombudsman had found the Government guilty of maladministration in the affairs of the Barlow Clones. “ Back in 1989, the Ombudsman also found the government guilty of maladministration over Barlow Clowes.” (Labour could do Well to Remember Reaction to Barlow Clowes Case. 2006). The Government, however, denied the acceptance of the ombudsman report and the Secretary of State said, “I want to make it clear the Government do not accept the Parliamentary Commissioners main findings. Nor are the Government legally liable.” (Examination of Witness. (Questions 127-139). 2006). However they were agreeable to offer a generous amount as compensation without, in principle accepting the fault of liability to the investors in Barlow Clones. Then government provided redress in the Barlow Clowes case. (Statement Given to Parliament by the Financial Secretary to the Treasury, Ruth Kelly on the Penrose Inquiry into Equitable Table. 2004). Compensation: This Compensation was worked as along with accrued compounded interest from the last payment of interest made by the company till the date of its liquidation. 1. Investors who had invested up to ₤ 50,000 – 90 % 2. Investors who had invested up from ₤ 50,000 –₤ 100,000 – 80% 3. Investors who had invested up above₤ 100,000 – 60%. (Column 197. Type 123 Frigates). The total outlay for compensation worked out to around ₤ 150 Million. The Government claimed that this payment was paid not in recognition of its liability but on grounds of respecting the views of the Ombudsman. But this stand seems anachronistic since the government maintained that even prior to the establishment of the Ombudsmen’s inquiry and the placing of the final report, findings and recommendations, the Government was already examining the various avenues available for providing monetary relief to the pensioners effected by the liquidation of Barlow Cloves. The recommendations mentioned by the Ombudsman in the report was rejected because the Government did not feel that it was its obligation to compensate the aggrieved pensioners in the way the Ombudsman recommended, but in the manner which the Government felt was most appropriate under the circumstances in order to provide maximum financial succor to the affected people so that they would be benefited maximum under the Financial Assistance Scheme. However the Government’s stand that it was not responsible for the losses incurred does not hold good. It is rightly believed that some 4 decades ago, the British Parliament had autonomously set up departments which was primarily responsible for initiating Government action in cases of Maladministration. Through the release of a publication entitled “General Accounting” it has been clarified that the Ombudsman has the last word regarding large scale public misdemeanours since the ombudsman would be empowered to decide whether the parties have really suffered culpable damages caused by Maladministration and whether the losses and damages thus incurred need to be suitable compensated. Therefore, it is clear that the powers of ombudsmen have not be reneged and they retain powers to decide the scope and treatment of matters relating to corruption in public life and other maladministration and misdeeds. It is necessary for public good that the implementation of the various recommendations of ombudsmen are honoured and implemented by the Government for the public good. The Ombudsman had mentioned in her report, that finally she believed that “the Governments response to my report raises wider issues in relation to official information, which are likely to be of interest to the Committee.” (Memorandum to the Public Administration Select Committee. 2007). References. Judgments - Regina v Secretary of State for the Home Dept. House of Lords Ex Parte Daly. (2001). Retrieved August 26, 2007 from http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010523/daly-1.htm Judgments - Seals (FC) (Appellant) v Chief Constable of South Wales Police (respondent). (Para 39). Business. Retrieved August 26, 2007 from http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=dali&ALL=&ANY=&PHRASE=&CATEGORIES=&SIMPLE=daly&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=muscat_highlighter_first_match&URL=/pa/ld200607/ldjudgmt/jd070704/seal-2.htm#muscat_highlighter_first_match O’Reilly v Mackman (1983). (2006). The K-Zone. Retrieved August 26, 2007 from http://www.kevinboone.com/lawglos_OReillyVMackman1983.html Roy v Kensington and Chelsea and Westminster FPC (1992). (2006). The K- Zone Retrieved August 26, 2007 from http://www.kevinboone.com/lawglos_RoyVKensingtonAndChelseaAndWestminsterFPC1992.html Pepper V Hart. (2006). The K – zone. Retrieved August 26, 2007 from http://www.kevinboone.com/lawglos_PepperVHart1993.html Labour could do Well to Remember Reaction to Barlow Clowes Case. (2006). Looks Smart. Retrieved August 26, 2007 from http://findarticles.com/p/articles/mi_qn4156/is_20060730/ai_n16653035 Examination of Witness. (Questions 127-139). (2006). Publications and Records. Retrieved August 26, 2007 from http://www.publications.parliament.uk/pa/cm200506/cmselect/cmpubadm/1081/6062802.htm Statement Given to Parliament by the Financial Secretary to the Treasury, Ruth Kelly on the Penrose Inquiry into Equitable Table. (2004). HM Treasury. Retrieved August 26, 2007 from htttp://www.hm-treasury.gov.uk/newsroom_and_speeches/speeches/finsecspeeches/speech_fst_080304.cfm Column 197. Type 123 Frigates. Publications and Records. Retrieved August 26, 2007 from http://www.publications.parliament.uk/pa/cm198990/cmhansrd/1989-12-19/Debate-1.html Memorandum to the Public Administration Select Committee. (2007). Parliamentary & Health Services (2006) : Conclusions Retrieved August 26, 2007 from http://www.ombudsman.org.uk/news/hot_topics/pasc_memo_0606.html Read More