In Defence of Administrative Law

To make matters worse, the plaintiff in this case was himself a judge, albeit in the unglamorous area of administrative law. (emphasis added)

I object!

(From a Guardian report on the infamous judge-sues-the-pants-off-dry-cleaners case (which itself is not an admin law case)).

Some of the most interesting and relevant issues the development of Irish law in recent years (refugee status, industry regulation/deregulation, tribunal procedures, and more) have been core questions of administrative law. For the social activist, knowing admin law (and knowing how to spot the screwups, or to seek change) is crucial. As Ireland (and other similarly situated countries) continues on the road to government-by-thousands-of-agencies (not to mention the various Commissions for Insert Sector Regulation), administrative law (and by proxy, the study of regulatory theory and general issues of procedure and of separation of powers) will, I believe, become more important, more relevant, and yes, more glamorous (even without the celebrities).

I was lucky enough to have the opportunity to teach three tutorials in admin law this year (the first on theory and development, the second on the standard of review (including human rights) and the third on bias). The course (taught by lecturer Dr. Eoin Carolan) has a certain level of urban myths about being ‘difficult’. I do feel that as students work through the course, many of them become prepared to change their mind about this ‘unglamorous’ subject (despite what Mr. Pilkington of the Guardian might say!)

Or am I just kidding myself? You tell me.

(edited to clarify the point of the last paragraph)

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2 thoughts on “In Defence of Administrative Law

  1. I say let them live, keep the market for Judicial Review strong and defensible.

    The basis of natural law in Ireland or Irish Jurisprudence is lost on ‘baseless civil servants’ to quote another academic of your parish.

    The nation move closer to the law and economics school on a monthly basis in my view. Ronald Regan has a fair amount to answer for i.e., ‘if it moves regulate it’.

    As a nation are we closer to Wasington DC or Brussels? (Depends on the definition of closer)

    Of course devolution of judicial power whether judicial or quasi-judicial powers will always suit ‘players’ who can afford to enter into such hearings etc. i.e., incumbents/monopolists/oligopolists with DEEP pockets.

    The recent scrapping of the Electronic Communications Appeal Panel -ECAP, is a case in point, with the S.I. not really handlling how appeals from the newly [Competition Power] armed regulator will actually work. I for one would like a division of the High Court set aside for Regulation only either as a subsection of the Commercial Court or other. Certain members of the judiciary are better than others when it comes to these matters.

    ECAP was chaired by Hugh Mohan SC and under the Ministerial governance of Dermot Ahern during his time in Communications. This was pursuant to Artile 4. of the 2003 Communications Framework, which gave options for/to 234 Preliminary Reference Procedures.

    Quasi-Judicial empowered regulatory bodies are really ‘gummy tigers’ if you ask me. Nemo judex in causa sua and Audi Alteram Partem will work to break the intentions of the legislature and executive. Recourse to the courts will always be available.

    Another thing thats quite weird is creation of summary offences by regulation, an astoundingly strange feature of the 2007 Communications Regulation Amendment Act.

    Sorry for the rant.

  2. Thanks for the comments – informative as always. I do intend to post something on ECAP soon, just haven’t got around to it yet. Agree with you on summary offences by regulation – and this was controversial at the time of the Dáil and Seanad debates on the 2007 act. We shall see.

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