#15602 - Theory - Administrative Law

WEEK 8: ADMIN LAW THEORY

Tomkins, ‘In Defence of the Political Constitution’ [2002]

The “political constitution and indeed generally, are in need of both defending and praising” (aims to look at relationship of law with politics & particularly to respond to Loughlin’s theory.

Tomkins highlights the difference between red-light and green-light theories of admin law (introduced by Harlow and Rawlings, and later amber and blue rinse views). Initial divide was based on four principal differences of view: (a) on law, (b) on the state, (c) on notions of control, (d) on liberty.

RED-LIGHT theorists believe:

1. That law is autonomous to and superior over politics;

2. That the administrative state is something which needs to be kept in check by the law;

3. That the preferred way of doing this is through rule-based adjudication in courts;

4. That the goal of this project should be to enhance individual liberty where liberty is conceived as being the right to be left alone, the absence of external constraints (an idea of liberty best realised by having small government).

This tends to reflect a more politically conservative view. Paradigm example is the model of illegality where Parliament enacts legislation which confers discretion on an executive decision-maker to do x, decision-maker does y and this decision is challenged by way of judicial review resulting in court invalidating y on the ground that Parliament did not authorise decision y – from the red-light perspective, the court is merely enforcing the will or at least expectation of Parliament

GREEN-LIGHT theorists believe:

1. That law is nothing more than a sophisticated (or elitist) discourse of politics and is neither autonomous from politics nor superior to administration;

2. That public administration is not a necessary evil to be tolerated, but a positive attribute to be welcomed;

3. That the objective of administrative law and regulation is not merely to stop bad administrative practices, but is to encourage and facilitate good admin practices (to control administration by channelling and guiding and courts not necessarily best vehicle to realise these objectives);

4. The goal of this project should be to enhance individual and collective liberty where liberty is conceived of as something which is, if not constituted by the state, then is at least facilitated by it, and is certainly not necessarily threatened by it (e.g. goal of the state might be to house the homeless and feed hungry and educate young, etc. and role of admin. law is to help state perform these tasks well).

More politically progressive – paradigm example of this model might be a complaint made to Parliamentary Ombudsman, resulting in Ombudsman investigating the complaint and reporting back to the government department against whom the complaint was made

RED LIGHT theories are rooted in 19^th century Diceyan constitutional analysis and GREEN LIGHT theories are focused on questions of law’s relationship specifically to public administration.

WIDER DEBATE OF FOUNDATION OF JUDICIAL REVIEW:

• “One can see the recent argument about the constitutional foundation of judicial review as being an argument between red- and amber-light theorists.

• Those who argue that the ultra vires rule is the proper foundation of judicial review are defending a position which has close associations with red-light theory. Those who posit that the common law is the proper foundation of judicial review are making a strongly amber-light argument”

AMBER-LIGHT theorists believe:

1. (With red-light theorists) that law is both discrete from and superior to politics;

2. That the state can successfully be limited by law, although that law ought properly to allow for the administration to enjoy a degree – albeit controlled degree – of discretionary authority;

3. That the best way of controlling the state is through the judicial articulation and enforcement of broad principles of legality;

4. That the goal of this project is to safeguard a particular vision of human rights.

DIFFERENCE:

• this view of administrative law is “as narrowly focused on judicial remedies as are red-light theories, but it elevates the constitutional role of the judiciary considerably beyond that advocated by red-light theorists”.

• Paradigm example of theory in practice is the case in which Parl confers a broad discretionary statutory power on a decision-maker and the decision-maker exercises his discretion in such a way as to touch on what the judges subsequently hold to be a fundamental or constitutional right

• Recently and especially after the Human Rights Act 1998, there has been a “growing desire to strike out such executive decisions on the ground that they violate such supposed rights”. Sir John Laws in 1995 said that “a democratic constitution is in the end undemocratic if it gives all power to its elected government”.

On Loughlin

• All three models rest on a different appreciation of the relationship between public law and politics. Significant part of LOUGHLIN’S ARGUMENT is that this legal challenge to politics is a more generally experienced manifestation of what he calls liberal-legalism (Loughlin defines the objective of liberal-legalism as to secure “the enclosure of politics within the straitjacket of law”).

• Tomkins considers whether this negative portrayal of politics is wise or even appropriate. The philosophical assumption upon which liberal-legalism is founded is that the relationship between law and politics is a polarised one.

• Tomkins seeks to show that POLITICS AND LAW ARE DEEPLY ENTWINED WITH EACH OTHER: he distinguishes distributive justice from corrective justice:

  • Loughlin argues that for Aristotle distributive justice was “essentially a matter of politics” whereas corrective justice was “purely a question of law”.

  • But Tomkins shows they’re related (e.g. with corrective justice, he discusses the politics of the English judiciary and the techniques and methods of interpretation and with distributive justice he looks at the welfare state).

  • Tomkins: “the underlying assumption of liberal-legalism is empirically mistaken, and that law and politics are mutually dependent and complementary, and are not antagonistically polarised opposites”.

  • Loughlin finishes with four main conclusions:

    • (1) the relationship between law and politics has no fixed or settled form;

    • (2) that each of the three basic conceptions of law (law as custom, law as command, and law as right) yields a different relationship between law and politics);

    • (3) liberal-legalism seeks to control and limit politics by, with and through, law;

    • (4) [most important] this liberal project is doomed to fail (Loughlin: the project of “establishing law as an objective framework of rational principles…has not been successful”).

• Tomkins argues that there is more than one way of conceiving of the relationship between law and politics (e.g. might be talking about the relationship between legal and political institutions or between legal and political actors or between the academic disciplines, etc).

• “most obviously, there is no such thing as the relationship between law and politics. Law and politics collide and combine in a dazzling variety of (not always compatible) ways. It follows from this conclusion that any project which is designed to uncover the one true relationship of law to politics is futile and is doomed to fail” (although this is not Loughlin’s project, it does raise the issue of why he talks throughout his book about the relationship between law and politics).

T’s love-in with politics/ suggestion of republican solution

• an “attempt to sketch out a vision of politics which will suggest not only that politics is worthy of praise, but that it is vital that we stop attacking politics, and start celebrating its many virtues”.

• Tomkins finds it a dangerous belief that the ‘answers to all political disputes can ultimately be found in law’ – an example of the consequences of not doing so is the US Supreme Court decision in Bush v Gore [2000] where the judiciary were given the task of ascertaining who won the American presidential election from the oblique test of American constitutional law (however controversial due to the fact that the Court, when it gazed into the Constitution, seemed to see their own political preferences).

• “politics is not something which we should desire to entrap within the straitjacket of the law … Politics is something which should be celebrated, not castigated. For politics is what makes us free”.

• Suggests REPUBLICANISM as a defence of politics (ie. freedom not threatened by the political state but positively constituted by it).

  • A central difference between liberal and republican constitutionalism is that while the former conceives of rights as being natural and superior to (or trumps over) the political order, the latter insists that rights and freedoms are utterly man-made and worldly (republicans hold that rights are derived from the political order, are dependent on it and not superior to it);

  • republican constitutionalism does not seek to exclude law or courts from constitutional concerns but merely seeks to locate the role of law in a less all-embracing manner than does liberal-legalism.

• He concludes by arguing that (despite antipathy with political engagement) “if politics is worth praising, and if it is worth rescuing from the liberal-legal onslaught, as Loughlin seems to imply despite the fact that he has thus far at least left the task to others [ie. does not provide a solution once he dismisses legal-liberalism], then it might be that politics has found a champion in...