This intermediate position provides an Ultra vires control specification for administrative governance. Acting within legislative authority is too fundamental for the government to escape independent judicial review. But the structure of this review should reflect, not contradict, the agency`s underlying place in government. Accordingly, a court`s justification for recognizing that the Agency has been vested with authoritative decision-making authority within its jurisdiction – a justification derived from the choice of Congress and the Agency`s experience – does not disappear when it comes to the scope of those powers. In this sense, the court`s obligation to ensure compliance with the law is not dissociated from an understanding of the legal system as a whole and the Agency`s place in it. This specification could be seen as based on a more general principle of the rule of law for administrative government: the form of ultra vires review should reflect the underlying legal division of competences, so that an independent review at first instance can always include a respectful review of the views of delegated powers. The other figure of law is embodied in the principle of legality. This principle is enshrined in article 5, paragraph 1, of the Federal Constitution and provides that: “All activities of the State shall be based on the law and limited by law”. The other paragraphs of this article oblige the Confederation and the cantons to act or to respect the principles of public interest and proportionality (2), the principle of good faith (3) and international law (4). All these elements are called the rule of law. However, the question of the primacy of international law over domestic law is the subject of intense political debate. Because of their sovereignty, states may decide to terminate their obligations, but they run the risk of compromising their international credibility with their partners (Keller and Balazs-Hegedüs 2016:719). If they violate their international obligations, they assume their international responsibility (Kolb 2016: 572-573).

(1) Authorization. Authorization is a fundamental principle of liberalism and the rule of law; It guarantees that the state acts or restricts an individual`s freedom only when he or she has the right to do so. 30 30 See Cass, op. cit. cit., note 17, pp. 12-13 (concluding that authority is valid as an element of the rule of law); McDonald, op. cit. cit., note 7, p. 204 (as a fundamental element of the rule of law, political power is permitted); see also Franz Neumann, The Democratic and the Authoritarian State: Essays in Political and Legal Theory 163 (1957). Narrow authorization requires a positive source of law that empowers the government to act. An authorising system is one in which official acts are under the authority of the authorised authority or do not deviate ultra vires Lord Bingham.

In his view, the rules were clear. It expressly referred to the receipt of the application for asylum as decided and not to the notification of the applicant. Parliament had expressly provided for the notification of decisions elsewhere in the Staff Regulations. Lord Bingham acknowledged the importance of the principle of legality for the rule of law, but countered that it was “a cardinal principle” of the rule of law that “clear and unambiguous legislation should be implemented”. The Court`s “aversion” to the Government`s treatment of the applicant could not lead it to give the Regulation “anything other than its clear and obvious meaning”. One of the main objectives of administrative law is to ensure efficient, economical and equitable administration. An administrative legal system that obstructs or hinders administration would clearly be wrong, as would a system that leads to injustice to the individual. However, in order to assess whether administrative law promotes or hinders efficient administration or operates in such a way as to deprive individuals of justice, it is necessary to examine the objectives that the public administration is intended to serve and the means it uses. Morand, C.-A. (1991). The Propelling State: Contribution to the Study of State Action Instruments. Paris: Publisud.

Administrative law, the legal framework within which public administration is exercised. It stems from the need to create and develop a system of public administration under the law, a concept that can be compared to the much older concept of justice under the law. Since administration involves the exercise of power by the executive branch of government, administrative law is of constitutional, political and legal importance. The function of the principle of legality is to limit and regulate the activities of the State. For individuals, the principle of legality is an important element in terms of legal certainty and equal treatment. Legal doctrine (Aubert and Mahon 2003:41) assumes that all public communities and institutions are destined. It is therefore addressed to the Confederation, the cantons and the communes, but also to all persons who take over the tasks of the State by delegation. Moreover, the principle applies to all activities of the state, i.e. not only those that restrict the rights of individuals, but also those that provide benefits to individuals or activities related to the organization of the state (Tanquerel 2011: 152). However, not every act adopted in the context of public administration is necessarily a legislative act or a State governed by the rule of law. If the standard is not general and abstract, it is called “choice”. In this case, the law regulates an individual and specific case.

This distinction between rule of law and decision is a fundamental element in understanding public administration and Swiss public law in general (see Mahon`s chapter). This distinction has many consequences in terms of the competence of the authority, the means of appeal, the method of communication of the act (official publication of the legislation and notification of the decision) or the information contained in the act. Moreover, the distinction between the two terms is not always easy to identify. Some urban plans are ambivalent acts whose scope goes beyond the individual without having a general scope. If the authority has doubts as to the form of the law it intends to adopt, it must consider whether an act still needs to be specified by individual acts in order to produce its effects; if so, the law to be adopted has an indeterminate scope characteristic of a legal provision (Federal Office of Justice 2007: 230).