As major repositories of public power, the institutional design and accountability of regulatory agencies are important matters. A host of questions arises for the student of law and administration. For example, will the statutory framework provide sufficient guidance? Does the agency have an appropriate measure of discretion and is it given the appropriate tools for the job? Is it well-placed and appropriately integrated in the wider regulatory network? Are good governance values such as transparency properly reflected in the design? Individually and collectively are the external lines of accountability up to the task? Or are they apt to confuse (or be confused)? We see immediately that, embedded though they now are in the institutional culture, the better regulation principles can only be a partial guide. Regulatory politics, in the guise of changing policy priorities, is apt to frame much in the enterprise; contestable value judgements are all around.

Discussing administrative justice in Chapter 13, we remarked on the difficulty of defining it. Two definitions were considered: on the one hand, the justice administered by administrative courts and tribunals; on the other, the justice inherent in administrative decision-making. Neither definition is really applicable to public inquiries, which are bodies set up to investigate and report on matters of concern to the public, often in terms of the Inquiries Act 2006. Arguably, public inquiries are not part of our administrative justice system.

Framed by the previous largely theoretical ones, this chapter looks at contemporary developments in law and administration from several angles. There is a pervasive sense of change, most obviously associated with, but not confined to, the extended Brexit process.

In this chapter, I argue that rather than echoing a perception of fundamental rights as principles, and of law as practical reasoning, as the Alexyan theory would want it, the force of proportionality in French public law lies in its aura of value-proof objectivity and scientific correctness. The spread of proportionality thus expresses the mystery surrounding political moral choices in French legal thought. At the same time, it expresses domestic lawyers’ search for a legal science, exempt from subjective moral or ideological evaluations, which could rationalise such choices. Proportionality in French public law has not served so much as a tool for legal change, as the transplant account of its spread would suggest, but rather as a conceptual tool in the hands of the doctrine for systematising and justifying evolutions in domestic judicial review.

It is generally accepted today that judicial review is the principal machinery through which courts exercise their constitutional function of controlling the executive. For many scholars it is the centrepiece of administrative law. But judicial review has not always occupied its present paramount position in administrative law. Since time immemorial, wrongful and illegal action by public officials could be challenged by means of an action for damages. In the famous eighteenth-century ‘General Warrant cases’, warrants issued by the Home Secretary to search premises, seize property and arrest those engaged in the publication of The North Briton, a paper published by John Wilkes, a well-known radical deemed dangerous by the authorities, were successfully challenged. Wilkes and his printers and publishers sued successfully for trespass to goods, trespass to land and false imprisonment; the warrants did not, as they should have done, specifically name the premises to be searched, the owners or the property to be seized. The judgments in which the officials were held liable still stand as landmarks in the vindication of civil liberties; they are routinely cited by modern courts which, as we shall see, are still hearing similar cases.

This chapter focuses on some major contract-type techniques of great importance in the changing landscape of law and administration. Their scale and diversity underwrite the zeal of the ‘contractual revolution’ in governance and with it the pervasive sense of experimentation. Once again practical problems of legal protection and of vindicating core values of transparency, accountability and participation (TAP) in the face of complex and policy-laden forms of contractual technique loom large. The design and workings of administrative procedure is typically a key piece in the jigsaw.

In an influential article written at the beginning of the century, Rabinder Singh QC called equality the ‘neglected virtue’ of our constitutional law. For what had become a much more diverse, multi-ethnic, society, this was a challenging characterisation; and so too in jurisprudential terms given that the right to be treated equally is a central tenet of modern liberalism. In Singh’s words, equality ‘could not be more important as a symbol of the kind of society we are’.

This chapter presents the story of how proportionality became a core concept in English public law. This is a story of continuity and change. It is only since its connection to European law during the 1980s that proportionality acquired conceptual autonomy and was distinguished from the common law concept of reasonableness. While its application in domestic judicial review was rejected during the 1990s, the promoters of proportionality sought continuity between the common law and European human rights standards, among them proportionality. Since the incorporation of the convention in the domestic sphere, proportionality applies as a different head of review from irrationality. As a prong-structured test, it is very akin to the global proportionality model and it involves a significant extension of judicial powers. Still, the doctrine of deference ensures that the role of courts remains different from the one ascribed to the primary decision-makers.