La nouvelle justice naturelle : l'administrateur « équitable et raisonnable »

This paper, based on a public lecture given in October, 1979, at the Faculty of Law of Laval University, gives an account of recent developments in English administrative law concerning the concepts of fairness and reasonableness. Tracing back the origins of the concept of fairness and its revival in Ridge v. Baldwin, the paper illustrates its current use by discussing several recent cases where Lord Denning's thinking appears to have had a strong influence. The contents of the administrator's duty to act fairly is described by the metaphor of a sliding scale allowing for a great diversity of requirements to suit the variety of statutory contexts. As to the concept of reasonableness, the paper brings out its close affinities with private law, and its progressive introduction as a standard by which courts rule on the legality of administrative decisions. This process has recently culminated in the Tameside and Laker cases, which are discussed at length. Both fairness and reasonableness may be shown to have rough equivalents in other European legal systems. The recent case of R. v. Barnsley Borough Council, ex p. Hook may point to another ground for cross-influences between English, French and German administrative law, especially in the context of EEC law : a concept of « proportionality » may be emerging in England — a distant outgrowth of the prohibition against « excessive fines » and « cruel and unusual punishment » in the Bill of Rights

Formality or Informality. A Case-Study of British National Insurance Local Tribunal Procedure and Practice

Cet article est divisé en deux parties. Dans la première (et de loin la plus longue) partie, l'auteur expose le processus décisionnel de règlement des litiges en matière de prestations de sécurité sociale en droit anglais. Après avoir exposé la hiérarchie ascendante des autorités décisionnelles (fonctionnaire, tribunal administratif local et commissaire), l'auteur analyse la procédure suivie par ces différentes autorités. Il décrit ainsi successivement l'étape de la décision initiale par le fonctionnaire compétent, celle de l'appel du tribunal et enfin celle de l'appel ultérieur au commissaire. Toutefois, la plus grande partie de l'exposé vise le fonctionnement du tribunal. La première partie de l'article traite également du rôle du ministre ainsi que celui dévolu aux cours de justice en ce domaine. La seconde partie de l'article traite de certains aspects formalistes et non formalistes de la procédure du tribunal. L'auteur utilise à cet égard son expérience en tant que président de l'un de ces tribunaux

La responsabilité civile découlant de l'inaction gouvernementale

The proliferation of governmental controls and services has created new aspects of governmental liability. The courts have had recently to decide cases where the claimant alleged that he had been affected by the failure of a public body to act in fulfillment of its responsabilities. Our purpose is, firstly, to indicate the nature and extent of the action for damages resulting from the violation of a statutory duty in English law. We will, then, discuss some recent applications of these principles in Anglo-Canadian and Quebec law

Le contrôle judiciaire en droit britannique : justice naturelle ou “fairness” ?

Frequently in the past, attempts have been made to systematize the notion of judicial review of administrative action. Thus, the Donoughmore Commission proposed the judicial, quasi-judicial, purely administrative model of analysis. The Commission was severely criticized, especially after the implementation of certain recommendations of the Franks Report which, in improving the quality of the control exercised on administrative tribunals, underscored the ridiculous character of that existing in other fields. The most violent criticisms came certainly from Griffith and Street, and also from Professor Wade who denounced the progressive atrophy of natural justice, the latter being the main topic of the present article. That concept, distinguished from "procedural ultra vires" in that a judge may look beyond the law for rules he himself has set establishing certain procedural guarantees, goes back a long way in time. Nevertheless, it is not a panacea. Its scope is limited to the study of the means whereby a decision is reached; it does not examine the conclusion, but rather how that conclusion is determinded. The usefulness of the notion was diminished when a condition of its application, the duty to act judicially, was added. Ridge v. Baldwin put the pieces of the puzzle back into place by discarding the decisions which gave the concept a much too restrictive interpretation. These first steps of the fairness concept were rapidly followed in matters concerning the allocation of licences. Judicial intervention here dates back to the last century. Yet, the Nakkuda Ali and Parker decisions restrained the spread of control through an erroneous interpretation of an opinion by Lord Atkin. Both decisions were overturned by the Ridge case. Later on, it seems that Lord Denning took the lead in a movement aimed at extending the scope of the duty to act fairly. That principle received its modem da consecration in the Crockford's decision and was used later in other decisions of a like nature. The late professor de Smith remarked this new tendency to go beyond the words to see, in the matter at issue, what is fair and what is not. Domestic tribunals, not in union matters alone (Breen) but also in sports problems (Machin), have also had this obligation to act fairly imposed on them, even though, strictly speaking, they do not have judicial powers. The question is rather to know whether a legitimate expectation of the person involved in the decision is brought into play, although the extend of the obligation varies depending on the circumstances of the case. It would appear that there is continued refusal to intervene in matters of labour contracts when faced with a purely master and servant relation (Sylva). But now the complete absence of statutory guarantees is required (Malloch). Procedural guarantees have continued to evolve since then. More and more, in different areas, thanks to the initiative of judges like Lord Denning, a system of English administrative law has developed. The principle of the existence of more or less defined minimal procedural guarantees has been established, no matter whether the administrative act implies the exercise of judicial power or not. Yet, British courts still refuse to intervene in legislative functions, including regulations issuing from statutory committees, even should the legislative instrument result from false representations. Control over immigration matters has become increasingly tightened, even though, at one time, there was an apparent desire to sanctify the absolute character of the discretion exercised in that field. The widening ofthat control came about as much from legislative changes as from judicial decisions. Thus it is that in the Re H.K. decision, there was established the duty to act fairly on the part of an immigration officer who might wish to turn a person back at the border whom he considers to be inadmissible. Soon (if it has not already happened) Britons will also benefit from procedural guarantees in matters of land planning. A recent decision made use of the fairness concept in that field. English courts have undertaken to sanctify fundamental procedural guarantees. The name, the scope and the extent of these rules has varied and continues to vary. It would seem, however, that there is a desire to leave the categorization of the act of administration to one side in favour of dealing with the consequences of an act for the individual. If a decision touches an interest, an vested right, or a legitimate expectation, the citizen is entitled to have certain minimal procedural guarantees respected, which may vary according to the circumstances, but which always involve the determination of what is fair in the particular instance. It is a necessary adaptation to the new reality of administration, something we hope to see come about in the very near future in Canada

Le juge : censeur de l'action de l'Administration

As Professor Wade rightly reminds us : « The powerful engines of authority must be prevented from running amok ». The control of the legality of administrative action by the ordinary courts prevents such action being arbitrary or unreasonable. But in sitting in judgment upon the administration, does not the judge risk usurping the role of the administrator ? This is a real misgiving which many authors share : they complain of « Government by judges ». The present article (based upon a public lecture delivered at Laval University in October 1983) considers this aspect of judicial control, especially in relation to certain recent decisions of the English superior courts

Effect of Lubricant Additives on the WDLC Coating Structure When Tested in Boundary Lubrication Regime

Improvements in coating deposition technology enable the mass production of high-quality diamond-like carbon (DLC) coatings at an industrial scale and also increase their use in lubricated contacts. However, the understanding of the interactions of different lubricant additives with this material is not yet fully developed. This study focuses on several fundamental aspects of the tungsten-doped DLC coating (denoted as WDLC) behaviour under boundary lubrication conditions with model lubricants. The effect of lubricant additives on the coating structure change is discussed in terms of carbon structure and the tungsten dopant. Electron energy-loss spectroscopy, XPS and Raman spectroscopy characterization for the upper carbon layers indicate that the WDLC coating interacts chemically with selected lubricant additives. The study provides information on both coating and additive optimization under boundary lubrication