8.

Theory of administrative law

Contrasting approaches to the role of public law and public law theory Harlow & Rawlings, Law and Administration (2nd edn., 1997), pp. 1-4, chs. 2-4 (Outline of Theories): Theories of constitutional or administrative law often are rooted in political theories and manipulated to fit e.g. Rule of law being employed by Hayek to fit his laissez-faire political and economic belief. Red light theories are those which see the aim of administrative law as being to curb state activity so as to protect the individual. This is associated with Dicey, placing the courts at the centre of the constitution and espousing general apolitical principles of JR. The red light theory tends to be supported by those who want a smaller state. An example of a red-light theory in practice is the courts ruling in Anisminic Green light theorists see administrative law as existing to help the state meet certain policy objectives. They tend to minimise the role of the courts and underplay the existence of general principles. Instead they emphasise the role allotted to political institutions i.e. taking a functionalist approach to the allocation of functions. They want to encourage efficiency in the governing process. It basically comes down not to resisting interventionism, but to make the policy efficient and provide justice for individuals. Such theorists generally prefer political to legal accountability. They dont want the courts to interfere with functions allocated by statute as this is to substitute in the court for the rightful decision maker. In reality, there are many shades in between red and green light theories, and most people occupy a middle ground. The growth in administrative tribunals and ouster clauses etc leads to fundamental questions about whether government or the courts should have the last say. * Tomkins, In Defence of the Political Constitution (2002) 22 OJLS 157: o Different theories of administrative law disagree over law, state, control and liberty o Red light theorists believe (1) that law is superior over politics; (2) That the administrative state needs to be kept in check; (3) The best way to do this is through rule based adjudication in the courts; and (4) that the goal of the public law project should be to improve liberty. It helps but is not necessary to be a smallgovernment ideologue to support this theory. o Green light theorists challenge the above. They say (1) that law is merely a type of political discourse and is not superior to administration; (2) that public administration is not a necessary evil but a positive good; (3) That administrative law is not to stop bad practices but to promote and facilitate good

administrative practices and that rule based adjudication is not necessarily the best way to do this; and (4) that liberty is to be promoted, but liberty in a collective sense i.e. the liberty that is only possible through interventionist government e.g. action against homelessness. o Amber light theorists say that (1) Law is superior to politicssame as reds; (2) that the state can successfully be limited by law, but that it ought to be given a controlled area of discretion; (3) That the best method of control is through broad judicial principles such as legality; and (4) that liberty amounts to the protection of specific human rights. Use of this theory was common before HRA where judges felt that an administrative decision touched on a fundamental right. HRA s.6 has now given this statutory backing. o Loughlin terms amber theory liberal-legalism which seeks to constrain politics within a straitjacket of law, so that the outcome of political deliberation is irrelevant. It takes a dim view of politics, while extolling the virtues of law. Loughlin rejects this view and says that rather than be opposite poles, law and politics have a mutual and intertwined relationship. Loughlin gives several case studies to demonstrate this and deduces several conclusions: From the fist Gulf War, where Iraq was attacked following its invasion of Kuwait in breach of international law, we can see that both law and politics are needed to explain the world of international relations. From Factortame, involving European fishing rules, we can see that political decisions (entering the EU) can have dramatic legal consequences. From the sale of arms to Iraq we can see that lawyers often do not understand politics as politicians do (Lord Scott, chairing the inquiry, found that ministers had acted unconstitutionally in misleading parliament, whereas the government vigorously denied this). From the disputes between Michael Howard, then Home Secretary, and successive Lord Chief Justices over sentencing we can see that there are greater and lesser extents to which the judiciary can make an impact on political decisions. This all goes to show that law and politics and combine or clash in a variety of different ways, so that any attempt to find the single relationship between law and politics is futile. o Tomkins argues that politics is worthy of praise and should stop being attacked and intruded upon by law. o It is mistaken to go to the law to ask for an answer to a dispute when a political impasse is reached. Hence the outrageous decision in Bush v Gore when the Supreme Court answered the question of who was the election winner simply by interpreting the constitution in a way that favoured each judges own preference for candidate. Surely this is more a problem with how politicised the judiciary is in the US rather than the type of question entrusted to them. In the political constitution of the UK, when no party has an overall majority, and the

leaders are unable to form a coalitions to govern, the House of Commons can pass a motion of no confidence in the governing party (i.e. that party governing before the general election and whose leader-the PM- refuses to resign) and the queen will invite one party leader to form an, albeit possibly minority-administration. This keeps the courts well out of the decision. o Political rule is government which seeks to conciliate our differences. He says that freedoms are man-made and derive from politics. Rights are political and it is for this reason that liberal-legalism is fundamentally wrong. Loughlin, Public Law and Political Theory (1992), chapters 4, 7, 8, 9 * Harlow, Public Law and Popular Justice (2002) 65 MLR 1: The legal and political processes should be kept distinct, whereas the growth of representative standing blurs this distinctions. The legal process must be kept broadly within traditional boundaries, if the qualities of independence, rationality & finality for which it is valued are to be maintained. This is because of the colonization of law by politics, and if we allow the campaigning style of politics (through representative standing), rather than formality and a particular method of reasoning, then we risk losing the above qualities for which law is esteemed, undermining its legitimacy. She says that Canes democratic nexus idea is right but that it is totally impractical for the cours to ascertain whether it exists. Why? Cant they just inquire as to the connection between the representative and the party with sufficient interest and ask for records of meetings, phone calls etc? She says that public interest standing has never been recognised in English law and hence the Greenpeace decision was wrong. Schiemann J in Rose Theatre was correct to assert that the courts are not there at the beck & call of every individual who is interested in testing the legality of an administrative act or decision. In Greenpeace Otton J said that if he were to deny standing then others would have no effective way of coming to court. This would represent an attitude that asks the courts to hold executive accountable, which is an invasion of the legal process by the political one. Harlows dislike of the accountability idea is seriously outdated: What about HRA?

* Laws, Law and Democracy [1995] PL 72 (NB Pre-HRA): He is examining the difference between judicial and elective power Modern judicial review inevitably examines cases which are the subject of political rancour e.g. legality of Maastricht Treaty, ban on broadcasting by extreme groups, hunting ban, disposal of nuclear waste etc. Also, following Pepper v Hart the courts may look at what is said in parliament in making a statutory construction.

 Judicial review in simple cases of ultra vires is easy to reconcile with political power: The courts are making sure that the donee of the power is acting within the power actually conferred on him and not beyond. However Wednesbury unreasonableness and procedural fairness are harder to explain. Their existence cannot be derived from the simple requirement that public bodies must be kept to the limits of their authority given by Parliament. They are judicial creations, and cannot realistically be attributed to parliamentary intention. These two do intrude upon the political sphere, because they are about stating how powerful people ought to behave. the survival and flourishing of a democracy in which basic rights (of which freedom of expression may be taken as a paradigm) are not only respected but enshrined requires that those who exercise democratic, political power must have limits set to what they may do: limits which they are not allowed to overstep. If this is right, it is a function of democratic power itself that it be not absolute. The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms. Elective power = the authority to make decisions of policy within the remit given by the electorate; this is a great power, with which neither the judges nor anyone else have any business to interfere. Ultimate sovereignty rests not in those who exercise governmental power but in the conditions under which they exercise it i.e. the constitution and fundamental principles/rights. Judicial power = to protect values which no democratic politician could honestly contest: values which, therefore, may be described as apolitical. How does this reflect reality? Many politicians would be against the duty of fair procedure, proportionality etc. Just because certain values are enshrined in our socalled constitution does not mean that they are apolitical.