Law and Administration

Citation

Harlow, C., & Rawlings, R. (2021). Law and administration (4th ed.). Cambridge University Press.

Chapter Summary

Chapter 1: The State and Administrative Law

This chapter introduces the relationship between law and administration, examining the legacy of Dicey’s principles and the royal prerogative. It discusses the green-light theory and the expansion of the administrative state.

Chapter 2: Changing the Mindset

Focuses on public service management, highlighting shifts in governance and the impact of good governance values. It addresses the risks to public law and the importance of juridification and the rule of law amidst rising populism.

Chapter 3: State of Change

Reviews the impact of global shocks, territorial changes, the European Union epoch, and Brexit on administrative law. It explores the re-regulation process and its implications for contemporary administrative practices.

Chapter 4: Transforming Judicial Review

Examines the evolution of judicial review, emphasizing the need for change and the rebuilding of the rationality model. The chapter discusses rights-based review, proportionality, and the potential development of a constitutional court.

Chapter 5: Making the Law

Discusses the law-making process within the constitutional framework, including evidence-based legislation and parliamentary oversight. It also covers the challenges of secondary legislation and the courts’ deference to the parliamentary process.

Chapter 6: Discretion and Rules

Analyzes the balance between discretion and rule-making in administrative law. Topics include the structuring of discretion, the complexities of immigration rules, and the advent of robotic decision-making.

Chapter 7: The Information State

Focuses on the state’s role as an information manager, examining freedom of information, data protection, privacy, and the intersection of surveillance and human rights laws.

Chapter 8: A Regulatory Laboratory

Explores regulatory governance, discussing various approaches to regulation, including better regulation initiatives and their outcomes.

Chapter 9: Regulatory Look: Agency Development and Accountability

Reviews the development of regulatory agencies, economic regulation, accountability mechanisms, and the environmental implications of regulatory practices.

Chapter 10: Contractual Revolution

Discusses the shift towards contractual governance in public administration, including the dynamics of public contracts, strategies, challenges, and the impact of Europeanization and Brexit.

Chapter 11: Contract, Contract, Contract

Examines the rise and fall of the Private Finance Initiative, franchising techniques, and the broader implications of contracting for individuals and public services.

Chapter 12: ‘Golden Handshakes’: Liability and Compensation

Analyzes government liability, negligence, tort law, and alternative compensation mechanisms, including a detailed case study of the Windrush scandal.

Chapter 13: Growing a Complaints Service

Covers the development of administrative justice mechanisms, including internal reviews, the role of ombudsmen, and investigatory methods in resolving complaints.

Chapter 14: Tribunals and Administrative Justice

Explores the role of tribunals as substitutes for courts, their evolution, restructuring efforts, and the move towards a digital future in administrative justice.

Chapter 15: The Public Inquiry: Investigation and Accountability

Discusses the role and development of public inquiries, their impact on accountability, human rights considerations, and notable case studies like the Hillsborough campaign.

Chapter 16: Procedural Review in Question

Examines the rationales behind procedural review, the balance between fairness and efficiency, and the interplay between various administrative processes.

Chapter 17: Testing Ground: Legality, Process, and Substance

Analyzes the interplay between legality, administrative processes, and substantive outcomes, focusing on judicial power and executive law-making.

Chapter 18: Litigation: Equalities Focus

Reviews discrimination law, public sector equality duties, and the broader implications of equality principles in administrative litigation.

Chapter 19: Judicial Review Process and Impact

Explores the structures, patterns, and impact of judicial review, including an analysis of the evidence base and the search for judicial review’s broader implications.

Key Concepts

1. Contextual Approach to Administrative Law

The book emphasizes understanding administrative law within its broader social, political, and economic contexts, rather than just through a legalistic lens.

2. Diceyan Heritage

Examines the influence of A.V. Dicey’s principles on the development of administrative law, particularly his opposition to discretionary powers and his emphasis on the rule of law.

3. Judicial Review

A core concept throughout the book, judicial review is explored extensively. The authors discuss its evolution, its role in ensuring accountability of administrative actions, and the various models and principles, such as rationality, proportionality, and rights-based review.

4. Discretion vs. Rules

The balance between administrative discretion and the need for rules is a recurring theme. The book addresses how discretion can be structured and controlled, and the impact of technological advancements like robotic decision-making.

5. Good Governance

The principles of good governance, including transparency, accountability, and the rule of law, are highlighted as essential for effective public administration.

6. Regulatory Frameworks

The book provides a detailed examination of regulatory frameworks, including the development and accountability of regulatory agencies, better regulation initiatives, and the role of economic and environmental regulation.

7. Contractual Governance

A shift towards governance through contracts is discussed, covering the implications of public contracts, the rise of the Private Finance Initiative, and the challenges posed by contractual mechanisms in public administration.

8. Information Management

The role of the state as an information manager is analyzed, focusing on issues like freedom of information, data protection, privacy, and the tension between surveillance and human rights.

9. Tribunals and Administrative Justice

The function and evolution of tribunals as substitutes for courts, their restructuring, and the movement towards a digital future in administrative justice are key concepts.

10. Public Inquiries

Public inquiries are discussed in terms of their role in investigation and accountability, including their historical development, procedures, and notable case studies.

11. Procedural Review

The rationale and methods of procedural review are explored, with a focus on fairness, efficiency, and the interplay between different administrative processes.

12. Equality and Non-Discrimination

The book delves into equality law, public sector equality duties, and the broader implications of discrimination law in administrative litigation.

13. Impact of Brexit

The effects of Brexit on administrative law, including the return of regulatory functions from the EU and the subsequent legislative and procedural adjustments, are analyzed.

14. Digitalization and Automation

The future of administrative law in a digitalized world is discussed, including the rise of automated decision-making and online adjudication.

Critical Analysis

1. Contextual Approach

Strengths: The book’s contextual approach is one of its greatest strengths, offering a holistic view of administrative law by situating it within its social, political, and economic environments. This method helps readers understand the practical implications of legal rules and the interplay between law and governance.

Weaknesses: However, this broad approach might sometimes lead to a dilution of legal principles, making it challenging for readers looking for a more focused legal analysis. The reliance on case studies, while illustrative, may also result in an uneven treatment of topics.

2. Diceyan Heritage

Strengths: The analysis of Dicey’s legacy is thorough, providing critical insights into the historical foundations of administrative law and its evolution. The discussion on the limitations of Dicey’s views in modern administrative contexts is particularly valuable.

Weaknesses: The book could further benefit from a comparative analysis with other legal traditions to highlight alternative approaches to administrative law beyond Dicey’s influence.

3. Judicial Review

Strengths: The treatment of judicial review is comprehensive, covering various models and principles such as rationality and proportionality. This provides a solid foundation for understanding the role of judicial oversight in administrative law.

Weaknesses: The book occasionally assumes a high level of prior knowledge about judicial review, which might be challenging for newcomers to the subject. A more introductory section could enhance accessibility.

4. Discretion and Rules

Strengths: The exploration of discretion versus rules is insightful, particularly in the context of new technological developments like robotic decision-making. This forward-looking analysis is crucial for understanding future trends in administrative law.

Weaknesses: The discussion could be enhanced by more empirical data on the impact of discretion and rules in various administrative contexts, providing a more evidence-based evaluation.

5. Good Governance

Strengths: The emphasis on good governance principles such as transparency and accountability aligns well with contemporary administrative law discourse. The integration of these principles throughout the book reinforces their importance.

Weaknesses: While the principles of good governance are well-covered, the book could provide more practical examples of how these principles are implemented in different jurisdictions, offering a comparative perspective.

6. Regulatory Frameworks

Strengths: The detailed examination of regulatory frameworks, including the development and accountability of agencies, is a significant contribution. The case studies on economic and environmental regulation are particularly relevant.

Weaknesses: The regulatory analysis sometimes focuses heavily on the UK context, with less emphasis on international regulatory practices. Including more comparative examples could broaden the book’s appeal.

7. Contractual Governance

Strengths: The analysis of contractual governance is timely, given the increasing reliance on public contracts and initiatives like the Private Finance Initiative. The discussion on the challenges and implications of this shift is well-articulated.

Weaknesses: The book could benefit from a more critical evaluation of the long-term sustainability of contractual governance and its impact on public accountability.

8. Information Management

Strengths: The focus on information management and issues like data protection and privacy is highly relevant in the digital age. The intersection with human rights law adds depth to the analysis.

Weaknesses: The discussion could be strengthened by including more recent case law and legislative developments in information management, particularly from non-UK jurisdictions.

9. Tribunals and Administrative Justice

Strengths: The examination of tribunals as court substitutes and their evolution is comprehensive. The discussion on the move towards digital adjudication is particularly forward-thinking.

Weaknesses: The book could provide more detailed comparisons with administrative justice systems in other countries, highlighting different approaches and innovations.

10. Public Inquiries

Strengths: The treatment of public inquiries is thorough, with well-chosen case studies that illustrate their role in accountability. The historical context provided enriches the analysis.

Weaknesses: The book could delve deeper into the procedural aspects of public inquiries, offering more practical guidance on their conduct and outcomes.

11. Procedural Review

Strengths: The exploration of procedural review’s rationales and methods is insightful, balancing fairness and efficiency considerations. The interplay between different administrative processes is well-articulated.

Weaknesses: The book might benefit from more empirical studies on the effectiveness of various procedural review mechanisms, providing a stronger evidence base for its analysis.

12. Equality and Non-Discrimination

Strengths: The focus on equality law and public sector equality duties is crucial, given the increasing emphasis on non-discrimination in administrative practices. The discussion is comprehensive and well-integrated into the broader analysis.

Weaknesses: The book could expand on the practical challenges of implementing equality duties, providing more real-world examples and solutions.

13. Impact of Brexit

Strengths: The analysis of Brexit’s impact on administrative law is timely and highly relevant, covering the legislative and procedural adjustments required. The discussion on re-regulation is particularly insightful.

Weaknesses: The book could include more forward-looking predictions on the long-term impacts of Brexit on administrative law, considering various possible scenarios.

14. Digitalization and Automation

Strengths: The examination of digitalization and automation in administrative law is forward-thinking, addressing the challenges and opportunities presented by technological advancements.

Weaknesses: The discussion could benefit from more concrete examples of how digitalization and automation are currently being implemented in administrative practices, both in the UK and internationally.

Real-World Applications and Examples

1. Judicial Review in Practice

Example: The landmark case of R (on the application of Miller) v The Prime Minister (2019) exemplifies the power of judicial review in scrutinizing executive actions. The UK Supreme Court ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful, highlighting the judiciary’s role in maintaining the rule of law.

Application: This case underscores the judiciary’s capacity to check executive overreach, ensuring that governmental actions adhere to legal standards and constitutional principles.

2. Regulatory Frameworks and Economic Regulation

Example: The role of regulatory bodies like the Competition and Markets Authority (CMA) in the UK, which oversees market competition, preventing anti-competitive practices and ensuring consumer protection.

Application: Regulatory frameworks are crucial in maintaining fair market conditions, fostering competition, and protecting consumer interests. The CMA’s interventions in mergers and acquisitions are practical examples of regulatory oversight in action.

3. Data Protection and Privacy

Example: The General Data Protection Regulation (GDPR) in the European Union serves as a robust framework for data protection and privacy, imposing strict requirements on data handling and granting significant rights to individuals.

Application: GDPR has set a global standard for data privacy, impacting not only EU-based organizations but also any entity processing the data of EU residents. Its implementation showcases how legal frameworks can adapt to technological advancements and protect individual rights.

4. Contractual Governance

Example: The Private Finance Initiative (PFI) projects in the UK, which involve private sector participation in public infrastructure development, such as hospitals, schools, and transport systems.

Application: PFIs illustrate the shift towards contractual governance in public administration, where the government collaborates with private entities to deliver public services. While these initiatives can bring efficiency, they also pose challenges related to public accountability and long-term financial sustainability.

5. Public Inquiries and Accountability

Example: The Hillsborough Inquiry, which investigated the 1989 Hillsborough disaster, where 96 football fans lost their lives. The inquiry highlighted severe police misconduct and systemic failures.

Application: Public inquiries like the Hillsborough Inquiry play a crucial role in uncovering truth, holding public bodies accountable, and providing closure to affected families. They demonstrate the importance of transparent investigative processes in achieving justice and reform.

6. Administrative Tribunals

Example: The operations of the First-tier Tribunal (Immigration and Asylum Chamber) in the UK, which adjudicates appeals against decisions made by the Home Office regarding immigration, asylum, and nationality matters.

Application: Administrative tribunals provide an accessible and specialized forum for resolving disputes between individuals and the state. They help alleviate the burden on traditional courts while ensuring fair and timely adjudication of administrative decisions.

7. Equality and Non-Discrimination

Example: The implementation of the Public Sector Equality Duty (PSED) under the Equality Act 2010 in the UK, which requires public bodies to consider the needs of all individuals in their day-to-day work.

Application: PSED promotes inclusivity and prevents discrimination by obligating public authorities to integrate equality considerations into their policies, practices, and decision-making processes. This duty ensures that services are accessible and fair to all segments of the population.

8. Information Management and Freedom of Information

Example: The Freedom of Information Act 2000 in the UK grants the public the right to access information held by public authorities, promoting transparency and accountability.

Application: The act has empowered citizens to seek information about government activities, leading to greater public scrutiny and informed participation in democratic processes. High-profile disclosures, such as MP expenses, have significantly impacted public trust and governance.

9. Brexit and Re-regulation

Example: The process of repatriating EU competencies to the UK post-Brexit, such as the transfer of regulatory responsibilities from the European Medicines Agency to the UK’s Medicines and Healthcare products Regulatory Agency (MHRA).

Application: Brexit has necessitated extensive legislative and regulatory adjustments, requiring the UK to develop domestic capacities for previously EU-regulated areas. This transition illustrates the complexities and challenges of re-regulation in a post-Brexit context.

10. Digitalization and Automation in Public Administration

Example: The implementation of automated decision-making systems in social welfare programs, such as the Universal Credit system in the UK, which uses algorithms to determine benefit eligibility and payments.

Application: Digitalization and automation can enhance efficiency and accuracy in public administration but also raise concerns about transparency, accountability, and the potential for algorithmic biases. Balancing these benefits and risks is crucial for the future of administrative governance.