The Province of Administrative Law

Michael Taggart

• Publisher: Hart Publishing
• Year: 1997
• ISBN:
  9781847316745
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

During the past decade, administrative law has experienced remarkable development. It has consistently been one of the most dynamic and potent areas of legal innovation and of judicial activism. It has expanded its reach into an ever broadening sphere of public and private activities. Largely through the mechanism of judicial review, the judges in several jurisdictions have extended the ambit of the traditional remedies, partly in response to a perceived need to fill an accountability vacuum created by the privatisation of public enterprises, the contracting-out of public services, and the deregulation of industry and commerce. The essays in this volume focus upon these and other shifts in administrative law, and in doing so they draw upon the experiences of several jurisdictions: the UK, the US, Canada, Australia and New Zealand. The result is a wide-ranging and forceful analysis of the scope, development and future direction of administrative law.

1

The Province of Administrative Law Determined?

MICHAEL TAGGART^*

This is not the kind of editor’s introduction to a published set of conference papers which gives nutshell accounts of the papers to follow. The papers speak for themselves and even if I could put each into a nutshell the authors would not allow them to remain there for long. My purpose in this paper is to make a contribution to some of the themes running through the collection and to indicate some linkages between the papers.

First of all, a word of explanation is necessitated by the ubiquity of the term “public law”. The reference in the title of this book to administrative law, rather than to public law, is deliberate. In this I follow the late Professor S.A. de Smith, who, in his inaugural lecture at the London School of Economics and Political Science, said: “I regard constitutional law and administrative law as occupying distinct provinces, but also a substantial area of common ground”.¹ Moreover, to pass muster under truth-in-advertising laws a book title using “Public Law” would have required more sustained treatment in the Canadian context of the Charter of Rights and Freedoms and of the public/private divide in other countries with “capital c” Constitutions and/or Bills of Rights. The province of administrative law, in the sense of a branch of learning, is not coextensive with that of constitutional or public law.² Nevertheless, the terms are commonly used interchangeably without causing any confusion; as they are in many of the papers in this volume.

ADMINISTRATIVE LAW AS SYMBOL IN AN AGE OF PRIVATISATION

Pointing out that institutional writers ignored administrative law for decades after it had become part of the working system of the British Constitution, Felix Frankfurter observed half a century ago that:³

“[people] seldom realise at the time how deeply dynamic changes are cutting. Old pictures of a political and legal scene remain current long after it has been drastically altered.”

This remains true today. The profound changes brought about by deregulation, commercialisation, corporatisation, public sector downsising, privatisation and globalisation have fundamentally altered the political and social landscapes in countries around the world. As a group lawyers were rather slow to appreciate the impact of these changes on legal systems and societies, but early on some administrative lawyers saw the threat to their subject posed by “the contracting state”.⁴ Many papers in this volume deal with these phenomena from various perspectives; particularly those by Murray Hunt, Mark Aronson, Wade MacLauchlan, David Mullan, Paul Craig and Alfred Aman.

The growth of these phenomena in the United Kingdom in the early 1980s coincided with an upsurge in theoretical interest in and writing about administrative law⁵ and a period of judicial activism there. The substantial body of case-law in the United Kingdom since then, mostly concerning judicial review of self-regulatory bodies and contracting out–far greater in quantity than in any other Commonwealth country–is considered in detail in the papers by Murray Hunt, Mark Aronson and Paul Craig. It is fair to say that the courts have failed so far to adopt a consistent and principled approach to these issues.⁶

Some light is shed on the strains in this case-law, and more generally between public law and private law, by appreciating the symbolic importance of administrative law.

A long time ago, in a once influential but now largely forgotten book called The Symbols of Government, Thurman Arnold wrote about law (as well as economics) as symbolic thinking which conditions the behaviour of people and groups.⁷ Arnold wrote in the aftermath of the Great Depression and in the midst of the New Deal, a time when many reform ideas were in the air. The trouble with the schemes of idealistic reformers, observed Arnold–no matter how unanswerable the case for reform:⁸

“is that they violate currently important symbolism. Therefore even if the reform is accomplished it is apt to find itself twisted and warped by the contradictory ideas which are still in the background in spite of the reform.”

Today’s “idealistic reformers” are largely economists, who glorify economic efficiency and give priority to the private sector and the “level playing field” of the market place. The influence of these ideas has been profound, transcending both national and ideological borders. The far-reaching structural adjustments brought about by these phenomena rival those wrought by the Depression.

The relevance of Arnold’s insight to “the shiny new world of the late twentieth century”⁹ is two-fold. First of all, it seems to me to explain what can only be described as the haphasard experience of judicial review of corporatised entities, self-regulatory bodies and of contracting out initiatives. Second, the response of many lawyers to these “reforms” has been to distill the essence of administrative law for transporting to the newly deregulated and privatised areas. It is no coincidence, in my view, that the self-conscious identification of “public law values” dates back to the early 1980s in Britain and was a response to deregulation, privatisation and the underlying theoretical attacks on the “public-regarding” starting point of administrative law.¹⁰

The list of public law values includes openness, fairness, participation, impartiality, accountability, honesty and rationality, and while they were distilled primarily from administrative law there is much common ground here with constitutional law.

One tension between some of the papers in this volume is over the question whether the courts should extend these public law values into the newly deregulated and privatised environment. The perennial critiques of judicial review, reiterated regularly throughout the Commonwealth,¹¹ are given new impetus with the temptation to judges to fill the accountability vacuum left by the retreating state. This genre is represented in this volume by Mark Aronson, who prefers to see public law values insinuated into legislation and administrative schemes. In contrast, Murray Hunt’s paper indicates greater willingness in the United Kingdom to view judicial review as one, but only one, accountability mechanism in this new environment. It appears that the degree to which judicial activism in this sense causes a stir in a particular society turns to some extent on the degree of satisfaction with the courts, legislature, executive and administration in that society.

This top down, court-centred approach prevalent in the United Kingdom¹² contrasts with bottom-up approaches, such as that advocated by Hudson Janisch and Ron Levi in their paper on police rulemaking in this volume. The vital role government lawyers play in inculcating and preserving public law values in the reconfigured administrative landscape is emphasised in Wade MacLauchlan’s paper.

The recent emphasis on public law values allows the influence of administrative law doctrine and values to transcend the limited and uncertain contours of judicial review, and to cast a long shadow over the recently levelled terrain of what was once called public administration. Administrative lawyers armed only with public law values have to fight it out in the ideological trenches with those with competing views and values.¹³

Of central importance in this skirmishing is the public/private divide, which has its roots in liberalism.¹⁴ Although the distinction is much criticised, its rumoured decline is greatly exaggerated.¹⁵ It is well known that demarcating the public and private spheres of life is a complex, indeed tricky, business. It is done for many different purposes in many contexts. Although as a shorthand expression we refer to the public/private distinction, there is not one distinction but many. Almost all of them have in common that at some level or other the words “public” and “private” say something about the legitimacy or otherwise of state action, and the freedom or otherwise of the individual to pursue her own ends in her own way.

One useful way to view the distinction between public law and private law is in terms of Arnold’s reference to “conflicting symbolism”.¹⁶ The difference can be seen as one of starting point. The starting point of private law, put crudely, is the primacy of self-regarding behaviour. Whereas the point of departure for administrative law is the primacy of public-regarding (or other-regarding) behaviour. This distinction is brought out clearly by Laws J. in R. v. Somerset County Council, ex parte Fewings,¹⁷ quoted in Dawn Oliver’s paper.

Of course, there are many doctrines in the common law (quite a few of which have an equitable origin) which place limits on the private law’s instinctive privileging of self-regarding behaviour, and legislative interventions are even more numerous and invasive. So much so that in particular instances the results derived from private law analysis may well approximate those derived from administrative law analysis. Starting points leading in different directions do not necessarily lead to different end points. At a reasonably high level of abstraction public law and private law share several underlying values, as Dawn Oliver demonstrates in her paper.

There is a good deal of interaction between the two bodies of law, and there is increasing evidence of cross-fertilisation.¹⁸ As David Mullan points out in his paper, employment law is one area where the influence of public law values can be seen.¹⁹ The implication of terms favouring the employee into the employment contract has been described recently as “a privatised form of judicial review”.²⁰ But the trade is not all one way. For example, the law of trusts and fiduciary law has been called to aid in the recognition of a public trust doctrine, imposing a trustee obligation on politicians and public servants owed to the public they serve.²¹ The poverty of public law in this area was illustrated by “fire sale” privatisations where publicly owned assets were sold by politicians sometimes at gross undervalues without any direct accountability.²²

What we are witnessing in some areas at least is a synthesis or blending of public and private law principles.²³ The artificial separation of common law and statute law, and the common law’s innate superiority complex, has blinded us to this blending in many areas. While the distinction between, and the symbolic functions of, private law and public law are unlikely to fall away, the tension between them is being mediated in ways that look interestingly familiar to both public and private lawyers.

OF PUBLIC UTILITIES, RACECOURSES, CASINOS AND RESTAURANTS

The public/private law divide was not always firm. Madame Justice Claire L’Heureux-Dubé in her paper essays the judges’ treatment of determinations by human rights commissions, but the stance of the common law towards discrimination is a tale worth telling in this context.²⁴ It illustrates how the law shifts over time (but almost always with some lag) in line with economic and political trends. But earlier, displaced ideas are never lost sight of entirely, and lie in the common law as resources to be rediscovered or utilised in legal and political argument. If nothing else they have symbolic importance. The story of the common law anti-discrimination principle,²⁵ or equality principle as it has sometimes been called,²⁶ also underscores the power (and arbitrariness) of legal classification. Furthermore, the interplay of statutory regulation and the development of the common law brings out issues of institutional competence and the respective law-making spheres of the judiciary and the legislature. In short, many of the issues explored in this volume can be seen at work in this area.

There are three inter-related but distinct doctrines which make up the common law anti-discrimination principle.²⁷ The first is the law relating to common callings. In the medieval period th...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Foreword
• Contents
• Preface
• List of Contributors
• Table of Cases
• 1 The Province of Administrative Law Determined?
• 2 Constitutionalism and the Contractualisation of Government
• 3 A Public Lawyer’s Responses to Privatisation and Outsourcing
• 4 Theoretical and Institutional Underpinnings of a Separate Administrative Law
• 5 Administrative Law for a New Century
• 6 Public Service Law and the New Public Management
• 7 Administrative Law at the Margins
• 8 Intermediate Associations and the State
• 9 The Reach of Administrative Law in the United States
• 10 Public Law and Control Over Private Power
• 11 The Underlying Values of Public and Private Law
• 12 Criminal Justice from the Bottom-Up: Some Thoughts on Police Rulemaking Processes
• 13 The Politics of Deference: Judicial Review and Democracy
• 14 The “Ebb” and “Flow” of Administrative Law on the “General Question of Law”
• 15 Feminism, Pluralism and Administrative Law Alison Harvison Young
• Bibliography
• Index