1 Introduction

The previous chapter considered the foundations of UK administrative law; this chapter looks at the challenges it faces. There is an inevitable subjective dimension as to what should be counted as a challenge for these purposes, and there are doubtless other issues that could be raised. The topics considered are, however, central.

The discussion begins with caseload and the impact that recent government reforms have had on the availability of judicial review. This is important since the reforms will shape access to review in the forthcoming years. While there are understandable governmental concerns about the number of applications for judicial review, the reforms are nonetheless problematic.

This is followed by discussion of the political constitutionalist challenge to legal constitutionalism, which has been the subject of lively exchanges. The foundational dimensions to this challenge are examined, followed by the historical and the normative dimensions. The difficulties with these aspects of the political constitutionalist argument are revealed. So too are the problems with the proposals advanced by political constitutionalists as to their preferred conceptual foundation of administrative law and their vision of its legitimate doctrinal reach.

The focus then shifts to the challenges faced by UK administrative law in terms of procedural and substantive judicial review. The discussion concerning process focuses primarily on the difficult determinations that the courts have had to make flowing from legislation enacted in the post-9/11 world. Much judicial and academic commentary focuses on the appropriate limits to substantive judicial review given the fact that courts may be required to make difficult determinations balancing incommensurable variables, or complex normative assessments. The assumption is that the judicial role in public law is different in this respect from that in private law. This is, however, far from self-evident, as the subsequent discussion will show. The analysis then turns to the standard of substantive review, and engages with the vibrant debate concerning the deference/respect/weight that courts ought to accord to primary decision makers.

The final two sections of the chapter address vertical challenges faced by UK administrative law as it interacts with other legal systems at the regional and international levels. The first of these sections addresses the judicial relationship between UK law, EU law, the ECHR and international law.

1 Introduction

The previous chapter considered the foundations of global administrative law; the present chapter addresses the challenges posed by this development, distinguishing between challenges of a horizontal and a vertical nature.

The horizontal challenge builds on existing scholarship by examining the more particular doctrinal features that are commonly said to comprise global administrative law, and the difficulties of applying these at the global level. Benedict Kingsbury, Nico Krisch and Richard Stewart defined these essential features as

Similar doctrinal features are found in the work of other authors, notwithstanding differences of nuance and degree. Commentators generally agree that the intellectual origin of these doctrinal principles lies in national administrative law, while at the same time stressing that their application to global governance poses particular problems, with the consequence that domestic public law precepts cannot simply be cut and pasted onto the global level. We need, however, to press further to understand more precisely how administrative decision making and rule making are legitimated at national level, and the difficulties of transposing such techniques to the global sphere. This will in turn shed light on how these difficulties may be surmounted, or how they may be alleviated in other ways.

This is followed by discussion of the vertical challenges, which take the form of interaction between legal orders. This is evident in relation to individual decisions made at the global level, which are felt to be deficient when judged in terms of administrative law precepts that pertain at the national and regional levels. The relationship between legal orders also covers the broader impact of the transfer of regulatory power to the global level, and the impact that this has on regulatory regimes and administrative law at the national and EU levels.

1 Introduction

This chapter explores the foundations of administrative law in the UK. It advances a model of common law constitutionalism that is more moderate than that presented by some other writers, but which best captures the historical provenance of the subject, is consonant with constitutional principle and coheres with legal practice. The argument proceeds in the following stages.

It begins with discussion of how administrative law evolved, which is analysed from three related perspectives, conceptual, judicial and administrative. The conceptual strand considers the different levels at which doctrine develops and the values that inform this. There is then consideration of the evolution of administrative law from a judicial perspective, through the principal case law developments in the seventeenth, eighteenth and nineteenth centuries. The focus then shifts to the administrative perspective, in order to understand the nature of administration, the powers wielded and the types of body that commonly came before the courts on judicial review.

This is followed by analysis of the relationship between theory, values and fact within public law discourse. Contestation as to the theoretical underpinnings of administrative law is inevitable, although no more or less than analogous debates that prevail in private law as to the normative foundations of contract, tort, property or restitution. In the public law realm the contestation will often reflect, at one stage removed, assumptions drawn from different political and legal theories, since the former will provide insight as to matters such as the nature of rights, conceptions of justice, the relationship between justice and other virtues, and the extent to which the state should seek to prescribe behaviour for its citizens, while the latter will furnish guidance as to the role of the courts when adjudicating on such issues. There are important general issues concerning the relationship between theory, value and fact, which are considered within this part of the chapter. While different perspectives on the values that underpin public law are inevitable this still leaves open whether there are fundamental binary divides that might provide the key to such differences. It has been argued that the distinctions between normativism and functionalism, and between the internal and external perspective, perform this role, and these claims are subjected to critical scrutiny.

I had the honour of delivering the Hamlyn Lectures in 2014. The three lectures that comprise the Hamlyn series were delivered in November–December 2014 and dealt with the following topics: ‘Foundations of UK Administrative Law: The Common Law Method, Values and Contestation’; ‘Foundations of EU Administrative Law: Treaty Foundations, Judicial Creativity and the Hierarchy of Norms’; and ‘Foundations of Global Administrative Law: Governance, Regulatory Power beyond the State and Administrative Legality’.

A unifying theme running through the three lectures was therefore that they dealt with aspects of the foundations of UK, EU and global administrative law respectively. The word ‘aspects’ should be emphasized in this context, because this book is not simply the product of the three lectures duly polished for publication. The reality was that the lectures covered only part of the material concerning the foundations of administrative law in the three legal systems, on average circa 25–30 per cent, and did not touch the analysis of the challenges faced by each system.

The book seeks to do what it says ‘on the tin’, viz. address the foundations and challenges of administrative law in and between these three systems. It is not a literature review. It does not seek systematically to expound the state of the art in relation to all issues discussed. It does explicate the background to the discussion, providing sufficient information for the reader to understand what follows, as exemplified by the treatment of the foundational material on global administrative law, with which many readers will be less familiar. The book also examines the views of particular scholars where that is pertinent to the inquiry. The overall objective is nonetheless to advance the debate on contentious issues, not to provide some potted version of the status quo. The choice of the three legal orders is reflective of the fact that administrative law functions at the national, regional and global level.