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THE REFORMATION OF ENGLISH ADMINISTRATIVE LAW

Published online by Cambridge University Press:  08 April 2009

Thomas Poole
Thomas Poole
Affiliation:
Law Department, London School of Economics & Political Science.
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The Cambridge Law Journal , Volume 68 , Issue 1 , March 2009 , pp. 142 - 168
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Copyright © Cambridge Law Journal and Contributors 2009

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References

1 Kruse v. Johnson [1898] Q.B. 91; Board of Education v. Rice [1911] A.C. 179; Local Government Board v. Arlidge [1915] A.C. 120.

2 Dicey, A.V., “The Development of Administrative Law in England” (1915) 31 L.Q.R. 148.Google Scholar

3 The phrase occurs in A. Brudner, Constitutional Goods (Oxford 2004), 225–30. For commentary on this development see, e.g., Stewart, R.B., “The Reformation of American Administrative Law” (1988) 88 Harvard Law Review 1667CrossRefGoogle Scholar; J. Mashaw, Due Process in the Administrative State (New Haven 1985); Mullan, D., “Fairness: The New Natural Justice” (1975) 25 University of Toronto Law Journal 281.CrossRefGoogle Scholar

4 Ridge v. Baldwin [1964] A.C. 40.

5 Anisminic v. Foreign Compensation Commission [1969] A.C. 147.

6 R v. Minister of Agriculture and Fisheries, ex p Padfield [1968] A.C. 997.

7 See, e.g., D. Marquand and A. Seldon, The Ideas that Shaped Post-War Britain (Fontana, 1996).

8 Associated Provincial Picture Houses v. Wednesbury Corporation [1948] KB 223.

9 For an account of the background and context of the Wednesbury decisions see M. Taggart, “Reinventing Administrative Law” in note Bamforth and P. Leyland (eds.), Public Law in a Multi-Layered Constitution (Oxford 2003).

10 This is even clearer on Lord Diplock's reformulation of the test, according to which “irrationality” only applies where a decision is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it”: Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, at 410.

11 See, e.g., Sterett, S., “Judicial Review in Britain” (1994) 26 Comparative Political Studies 421, 421–2CrossRefGoogle Scholar: “Courts participated in British politics quite directly throughout the 1980s”, but they did so through the application of two primary legal mechanisms: (a) the requirement to consult in policy-making; (b) the application of rules to specific cases.

12 For analysis of formalism in the context of administrative law see T. Poole, “Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights”, in C. Harlow, L. Pearson and M. Taggart (eds.), Administrative Law in a Changing State (Oxford 2008); Forsyth, C., “Showing the Fly the Way out of the Flybottle: The Value of Formalism and Conceptual Reasoning in Administrative Law” (2007] C.L.J. 325CrossRefGoogle Scholar. For a defence of a formalist system of administrative (and constitutional) law see A. Vermeule, Judging Under Uncertainty (Cambridge, Mass. 2006).

13 See C. Harlow, “A Special Relationship? American Influences on Judicial Review in England” in I. Loveland (ed.), A Special Relationship? American Influences on Public Law in the UK (Oxford 1995), 83–86, which lists the following features of the classic English model: absence of any substantive distinction between public and private law; restricted grounds of review coupled wit a strict application of the doctrine of precedent; highly individualistic orientation and conspicuously marked by judicial restraint; interest-oriented, a fact reflected in the law of locus standi; remedy-oriented. See also M. Taggart, “‘The Peculiarities of the English’: Resisting the Public/Private Law Distinction”, in P. Craig and R. Rawlings (eds.), Law and Administration in Europe (Oxford 2003), 116–118.

14 Jowell, J. and Lester, A., “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] P.L. 368.Google Scholar

15 Compare, for instance, Paul Craig, Administrative Law, 6th ed. (London 2008) advocating (albeit tentatively) the recasting of administrative law on rights-based Dworkinian lines; T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford 2003) which advances a common law theory of public law; and C. Gearty, Principles of Human Rights Adjudication (Oxford 2004) and Civil Liberties (Oxford 2007) who sees rights and public law as connecting with and helping to structure a broader democratic politics.

16 See, e.g., K.D. Ewing, “The Futility of the Human Rights Act” [2004] P.L. 829; K.D. Ewing and J.-C. Tham, “The Continued Futility of the Human Rights Act” [2008] P.L. 688.

17 On the subject of which rights should be recognized and protected by the courts, see K.D. Ewing, “Social Rights and Constitutional Law” [1999] P.L. 104.

18 S. Shah and T. Poole, “The Impact of the Human Rights Act on the House of Lords” [2009] P.L. (forthcoming).

19 R v. Secretary of State for the Home Department, ex p Bugdaycay [1987] 1 A.C. 514.

20 R v. Lord Chancellor, ex p Witham [1998] Q.B. 575.

21 R v. Ministry of Defence, ex p Smith [1996] Q.B. 517.

22 See, e.g., Jowell, J., “Beyond the Rule of Law: Towards Constitutional Judicial Review” [2000] P.L. 671.Google Scholar

23 See, classically, R v. Secretary of State for the Home Department, ex p Brind [1991] A.C. 696.

24 See, e.g., Stone Sweet, A. and Matthews, J., “Proportionality Balancing and Global Constitutionalism” (2009) 47 Columbia Journal of Transnational Law (forthcoming)Google Scholar; R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass. 2004).

25 Smith and Grady v. United Kingdom (1999) 29 E.H.R.R. 493; Lustig-Pream and Beckett v. United Kingdom (1999) 29 E.H.R.R. 548.

26 See, e.g., ex p Smith [1996] Q.B. 517.

27 R v. Secretary of State for the Home Department, ex p Daly [2001] UKHL 26, [32].

28 Ibid., [27].

29 Taggart, “Reinventing Administrative Law”, above note 9, 329.

30 See, e.g., A. Kavanagh, “Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication”, in G. Huschcroft (ed.), Expounding the Constitution: Essays in Constitutional Theory (Oxford 2008); Rivers, J., “Proportionality and Variable Intensity of Review” [2006] C.L.J. 174CrossRefGoogle Scholar; Phillipson, G., “Deference, Discretion and Democracy in the Human Rights Act Era” (2007) 60 Current Legal Problems 40.CrossRefGoogle Scholar

31 D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart (ed.), The Province of Administrative Law (Oxford 1997).

32 For an argument for retaining Wednesbury see Elliott, M., “The Human Rights Act and the Standard of Substantive Review” [2001] C.L.J. 301.CrossRefGoogle Scholar

33 The Association of British Civilian Internees – Far Eastern Division v. Secretary of State for Defence [2003] EWCA Civ 473, [34] & [35] (per Dyson L.J.).

34 Dunsmuir v. New Brunswick (2008) SCC 9.

35 Report of the Committee on Administrative Tribunals and Enquiries, Cmnd 218 (London: HM Stationery Office, 1957) (the Franks Committee), 2.

36 [2004] EWHC 1389 (Admin); [2004] E.L.R. 374.

37 R (SB) v. Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199; [2005] 2 All E.R. 396, at [75]: according to Brooke L.J., the structure of process of decision-making should have taken the following line: “Has the claimant established that she has a relevant Convention right which qualified for protection under Art. 9(1)? (2) Subject to any justification that is established under Art. 9(2), has that Convention right been violated? (3) Was the interference with her Convention right prescribed by law in the Convention sense of that expression? (4) Did the interference have a legitimate aim? (5) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim? (6) Was the interference justified under Art. 9(2)?”

38 Ibid., at [76] (per Brooke L.J.). For critical analysis of this decision, see T. Poole, “Of Headscarves and Heresies: the Denbigh High School Case and Public Authority Decision-making under the Human Rights Act” [2005] P.L. 685.

39 See also Re Conor [2004] N.I.C.A. 45, at [28] and [29].

40 [1998] Q.B. 575, at [81]. See also Scott Baker L.J. at [92].

41 R (Begum) v. Headteacher and Governor of Denbigh High School [2006] UKHL 15; [2006] 2 All ER 487, at [25] (per Lord Bingham), [50] (per Lord Hoffmann) and [87] (per Lord Scott). For analysis of the decision see D. McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford 2006), 190–204.

42 Ibid., paras. [29]–[31].

43 Ibid., at [68].

44 R v. Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27, [17].

45 Ibid., [60].

46 R (Razgar) v. Secretary of State for the Home Department [2003] EWCA Civ 840, [8].

47 See, e.g., Allan, T.R.S., “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” [1986] C.L.J. 111Google Scholar; Allan, Constitutional Justice.

48 Allan, T.R.S., “Human Rights and Judicial Review: A Critique of ‘Due Deference’” [2006] C.L.J. 671, 671CrossRefGoogle Scholar. See also Allan, “Common Law Reason and the Limits of Judicial Deference”, in D. Dyzenhaus (ed.), The Unity of Public Law (Oxford 2004).

49 M. Hunt, “Sovereignty's Blight: Why Contemporary Public Law Needs a Concept of ‘Due Deference’” in note Bamforth and P. Leyland (eds.), Public Law in a Multi-Layered Constitution (Oxford 2003), 339 & 350.

50 International Transport Roth GmbH v. Secretary of State for the Home Department [2002] EWCA Civ 158; [2003] Q.B. 728, at [81]–[87].

51 “Human Rights and Judicial Review”, above note 48, 682.

52 Ibid., 675.

53 Ibid., 676.

54 Ibid., 671–72.

55 See also, e.g., Dyzenhaus, “The Politics of Deference”, above note 31.

56 J. Jowell, “Judicial Deference and Human Rights: A Question of Competence” in Craig and Rawlings, Law and Administration in Europe, above note 13, 68.

57 Ibid., 73.

58 D. Beatty, The Ultimate Rule of Law (Oxford, 2004), 144.

59 Ibid., 116.

60 Ibid., 93.

61 Although their position might be interpreted rather differently: essentially as an argument in favour of substantive as opposed to procedural justice. This reading would generate a different answer to our first question – courts should not impose a general duty on public authorities to make decisions consciously and explicitly on the basis of Convention rights as that would deflect the “rights revolution” from its proper substantive/normative orientation towards an uncalled-for focus on formalities and procedure.

62 Hickman, T., “The Substance and Structure of Proportionality” [2008] P.L. (forthcoming)Google Scholar. See also D. Mead, “Judicial Miss Behavin': a Defence of Process-Based Review of Public Authority Decisions under the HRA” (Norwich Law School Working Paper 08/02).

63 See, e.g., Sir John Laws, “Public Law and Employment Law: Abuse of Power” [1997] P.L. 455.

64 See, e.g., Sir John Laws, “The Constitution: Morals and Rights” [1996] P.L. 622.

65 For a general critique of such approaches see A. Vermeule, Judging Under Uncertainty (Cambridge, Mass. 2006).

66 R. Pound, The Spirit of the Common Law (Boston 1921), 56.

67 Proceduralist decisions of this sort might also lead to confusion among both administrators and the broader public. The Court of Appeal decision in Denbigh was widely misperceived as being about substantive violations of rights. See, e.g., “Muslim pupil wins religious dress ruling”, The Guardian, March 2, 2005; “School girl wins right to wear Muslim gown”, The Telegraph, March 3, 2005.

68 In a recent attempt at mapping this complex scene, Colin Scott identifies four governance “regimes”. Governance through public law derived from the traditional “state-centric conception of regulatory governance” in which control “is often premised upon the use of law to make rules or standards”. Governance through markets and competition is “premised upon the idea that the behaviour of dispersed buyers and sellers, when aggregated, creates a discipline on all actors in the market”. Unlike governance through public law, one attraction of markets in public management reform is the tendency to remove certain responsibilities from governments. Governance through networks and communities exploits the capacities of communities to develop social norms and to police them through non-coercive mechanisms. Governance through design refers to the construction of systems in response to which, when they are operating properly, “there is nothing the object of regulation can do to change the way these modalities are applied.” Scott's thesis is that “each modality of control (with the exception of the fourth) brings with it an accountability template as a more or less spontaneous incidence of the control modality.” See C. Scott, “Spontaneous Accountability”, in M. Dowdle (ed.), Public Accountability (Cambridge 2006).

69 Stewart, Richard B., “Administrative Law in the Twenty-First Century” (2003) 78 New York University Law Review 437Google Scholar, provides a parallel account in which five distinct models or approaches within American administrative law are identified: (1) the common law model; (2) the traditional model; (3) the New Deal model of regulatory management; (4) the Interest Representation model; (5) analytic (or cost-benefit) management of regulation. He also notes the rise of two new regulatory techniques: government-stakeholder networks (e.g. the OMC within the EU) and economic incentive systems (e.g. carbon trading).

70 Cf. J.A.G. Griffith, “The Brave New World of Sir John Laws” (2000) 63 M.L.R. 159.

71 Dyzenhaus, D., “The Rule of (Administrative) Law in International Law” (2005) 68 Law & Contemporary Problems 127, 151–2.Google Scholar

72 See, e.g., Begum, [2006] UKHL 15, paras [29]–[31] (per Lord Bingham).

73 Mashaw, J.L., “Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise” (2005) 55 University of Toronto L.J. 497.CrossRefGoogle Scholar

74 Ibid., 501.

75 Ibid., 517.

76 Ibid., 520 (quoting Rubin, E., “Law and Legislation in the Administrative State” (1989) 89 Columbia L.R. 369).CrossRefGoogle Scholar

77 Ibid., 508. See also P. Strauss, “When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History” (1990) 66 Chicago-Kent L.R. 321. Lest this approach seem too unrelated to the English context, recall that the court in Kruse v. Johnson [1898] 2 Q.B. 91 offered a broadly similar approach, providing a list of things that might be held unreasonable and emphasizing the need for “benevolent interpretation” of the by-laws of elected local authorities.

78 For a defence of this position see Poole, T., “Legitimacy, Rights and Judicial Review” (2005) 25 O.J.L.S. 697CrossRefGoogle Scholar.

79 See, e.g., L. Bridges, G. Meszaros and M. Sunkin, Judicial Review in Perspective (London 1995).

80 Griffith, J.A.G., “The Political Constitution” (1979) 42 M.L.R. 1.CrossRefGoogle Scholar

81 Hutchinson, A., “The Rise and Ruse of Administrative Law and Scholarship” (1985) 48 M.L.R. 293.CrossRefGoogle Scholar

82 See, e.g., R v. DPP, ex p Kebilene [2002] 2 A.C. 326, 381B-D (per Lord Hope); A v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68, paras [37]–[42] (per Lord Bingham).

83 International Transport Roth GmbH v. Secretary of State for the Home Department [2003] Q.B. 728 at 767.

84 R (ProLife Alliance) v. British Broadcasting Corporation [2004] 1 A.C. 185, at [75].

85 Huang v. Secretary of State for the Home Department [2007] UKHL 11, [16].

86 Secretary of State for the Home Department v. Rehman [2002] 1 All ER 122, at [62] (per Lord Hoffmann); R (Gillan) v. Commissioner of Police for the Metropolis [2006] UKHL 12, in which the decision to accept (or defer to) the risk assessment of the Assistant Commissioner and the Home Secretary was described as “not a question of deference but … ‘relative institutional competence’” (per Lord Bingham at [17]). See also the extra-judicial “debate” between Lords Hoffmann and Steyn: Hoffmann, Lord, “COMBAR Lecture 2001: Separation of Powers” [2002] Judicial Review 137CrossRefGoogle Scholar; Lord Steyn, “Deference: A Tangled Story” [2005] P.L. 346.

87 [2007] UKHL 19, at [83]: “Article 10 is indeed engaged in this case, albeit at a relatively low level” (per Lord Neuberger).

88 Ibid., at [13].

89 Ibid., at [37].

90 Ibid., at [91].

91 See, e.g., Gearty, Principles of Human Rights Adjudication, above note 15.

92 Marbury v. Madison (1803) 5 US 87.

93 Chevron USA Inc v. Natural Resources Defense Council Inc 467 US 837 (1984) at 865–866: “Judges are not experts in the field, and are not part of either political branch of the Government … While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices – resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Chevron was complicated – some would say muddied – by the subsequent Supreme Court decision in United States v. Mead 533 US 211 (2001).

94 But see M. Stephenson and A. Vermeule, “Chevron Has Only One Step” (Harvard Law Working Paper, 08-24).

95 Vermeule, Judging Under Uncertainty, above note 12, 207.

96 Canada has a similar doctrine of judicial “deference” to agency interpretations of “their own” laws, although it rests on an acceptance of the “administrative state” as a fourth branch of government, whose interpretative role carries some precedent force which is entitled to some (but not automatic) respect: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp [1979] 2 S.C.R. 227; Baker v. Canada (Minister of Citizenship and Immigration) (1999) 174 D.L.R. (4th) 193. See further D.J. Mullan, “Deference: Is it Useful Outside Canada?”, in H. Corder (ed.), Comparing Administrative Justice Across the Commonwealth (Cape Town 2006).

97 See, e.g., Tolley, M.C., “Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective” (2003) 31 Policy Studies Journal 421CrossRefGoogle Scholar; Allars, M., “Chevron in Australia: A Duplicitous Rejection?” (2002) 54 Administrative Law Review 569Google Scholar.

98 See, e.g., Duffy, John F., “Administrative Common Law in Judicial Review” (1998) 77 Texas Law Review 113, 192Google Scholar: which says that “Chevron rescues the Justices from lawmaking on a small scale and allows them to operate at the level where real power is” and argues that Chevron is “primarily a case about delegation, not deference” (at 202). Cf. Cass R. Sunstein, “Law and Administration after Chevron” (1990) 90 Columbia Law Review 969, which regards Chevron as a “counter-Marbury principle”.

99 For an empirical investigation into the application of the Chevron doctrine see T.J. Miles and C. Sunstein, “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron” (2009) 76 University of Chicago Law Review (forthcoming).

100 Vermuele, Judging Under Uncertainty, above note 12. See also J.A. King, “Institutional Approaches to Judicial Restraint” (2008) 28 O.J.L.S. 409.

101 Mashaw, above note 73, 511.

102 Allan, above note 51.

103 See, e.g., T. Poole, “Courts and Conditions of Uncertainty in ‘Times of Crisis’” [2008] P.L. 234.

104 M. Shapiro, “Trans Atlantic: Harlow Revisited” in Craig and Rawlings, Law and Administration in Europe, above note 13, 236. “It can hardly be otherwise. No court that takes judicial review, or more broadly the judicial function itself, seriously, can give up its authority decisively to decide questions of law. To allow an agency exercising delegated rule-making powers to be the sole and final interpreter of the delegating statute would render every such delegation unlimited until recalled. On the other hand, no court engaged in administrative review can deny that the agency to which rule-making authority is delegated must interpret the statute in order to make rules under it.”

105 Begum, [2006] UKHL 15 at [68] (per Lord Hoffmann).

106 See, e.g., R. (Alconbury Developments Ltd) v. Secretary of State for the Environment and the Regions [2003] 2 A.C. 295.

107 On the impact of the HRA see, e.g., S. Halliday and P. Schmidt (eds.), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Legal Context (Oxford 2004).

108 Cf. W.A. Robson, Justice and Administrative Law (London 1928), 429: “If constitutional law emphasises individual rights, administrative law lays equal stress on public needs”.

109 Cf. A. Badiou, Being and Event trans. O. Feltham (London 2005), 81.

110 See, e.g., Allan, Constitutional Justice, above note 15.

111 In doing so, I adopt a broad conception of administrative law as the body of law which “establishes both primary rules governing how the administration is authorized to work (its organization, powers, and procedures), as well as the secondary rules governing remedies (judicial and other) available in cases of a failure to observe the primary rules.” (J.S. Bell, “Comparative Administrative Law” in M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford 2006), 1261.) See also, e.g., R.A. Stewart, “Administrative Law in the Twenty-First Century” (2003) 78 New York University Law Review 437, 438: “In liberal democratic societies, administrative regulation is itself regulated by administrative law. This law defines the structural position of administrative agencies within the governmental system, specifies the decisional procedures those agencies must follow, and determines the availability and scope of review of their actions by the independent judiciary. It furnishes common principles and procedures that cut horizontally across the many different substantive fields of administration and regulation.”

112 See, e.g., C. O'Cinneide, “Democracy, Rights and the Constitution – New Directions in the Human Rights Era” (2004) Current Legal Problems 175, 187–188: “The HRA [Human Rights Act 1998] not only enables courts to consider rights arguments, it also induces a ‘rights orientation’ in how democratically derived powers are interpreted and applied.”

113 D. Dyzenhaus, “The Politics of the Question of Constituent Power” in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism (Oxford 2007), 135.

114 See also T. Poole, “Legitimacy, Rights and Judicial Review” (2005) 25 O.J.L.S. 697.

115 G. Teubner, Juridification of Social Spheres (Berlin 1987).

116 M. Loughlin, “Rights, Democracy, and Law” in T. Campbell, K.D. Ewing and A. Tomkins (eds.), Sceptical Essays on Human Rights (Oxford 2001), 59.