The Rule of the Courts

Vasco Pereira da Silva

integrated into an independent judiciary (conceived “without a shadow of sin”, either before the administrative power or before the legislative power), and in which the judge enjoys full powers over the Administration – as is the “image of the body” in the British system – should be the most appropriate solution for the effective functioning of Administrative Justice. However, in a system where the judge could (in theory) enjoy full powers to control the Administration, in practice, he will never be able to use them, due to a set of constraints and limitations that call into question the fullness and effectiveness of the system or, in other words, once again, the “body” does not match its “image”. Among these limits and restrictions, the following are particularly noteworthy: a) the existence of genuine ‘immunities’ for the Administration in relation to specific procedural means (such as ‘prerogative orders’), which could not be used against the Crown as such, making it very difficult to control the actions of the Government and other higher administrative bodies 46 ; b) the self-restraint of British judges with regard to the assessment of discretionary powers, since the courts tend to adopt an overly broad understanding of discretion (even when compared to the continental system), making judicial control less effective; b) the existence of different procedural rules for administrative disputes, despite jurisdictional unity, since most administrative decisions could not be reviewed through generic procedural means (appeal), but only through specific means (prerogative orders). All things considered, I believe it is imperative to reformulate DICEY’s statement, since in today’s United Kingdom, after all, there is always Administrative Law; administrative authorities with powers of coercive enforcement under the law (e.g. ‘administrative tribunals’); and Administrative Justice, since not only is there a specialised administrative court to judge 46 This fact only became widely known when, in the 1980s and 1990s, the Court of Justice of the European Union issued successive rulings against English courts that granted immunity from prosecution to ‘acts of the Crown’, particularly in matters of interim relief. Ironically, one might say that the courts of the United Kingdom were condemned by the European Court of Justice for not being sufficiently ‘British’ (e.g. the ‘Factortame’ case). See VASCO PEREIRA DA SILVA, ‘O Contencioso Administrativo no Divã da C.’ [Administrative Litigation before the Court], cit., pp. 147 and 148.

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