Administrative Law: A Values-Based Approach
I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year.
Here is the abstract:
I focus in this essay on judicial review of administrative action, looking at the subject “from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended”. Rather than starting from the constitutional basis of judicial review and working backwards to practice, I start by identifying the core values revealed by the practice of administrative law and then work forwards to analyze how they influence the shape and trajectory of the law.
My focus is on administrative law doctrine. I contend that administrative law in this sense is best understood by reference to several core values: the rule of law, good administration, democracy and separation of powers. I trace the contours of these values in Part II. These values inform doctrinal choices that courts make in the areas of process, substance and remedial discretion, a body of law considered in Part III. Occasionally they must be complemented by institutional considerations centering on the need to conserve scarce judicial resources, an issue also considered in Part III.
I take the time in this paper to discuss important areas of administrative-law doctrine and determine whether judicial decisions are influenced by a set of values. Identifying these values is a useful task. Explaining doctrinal rules and outcomes in particular cases is valuable, all the more so if common themes can be traced across very different areas of administrative law. A values-based framework is capable of accommodating the development of doctrine over time, an urgent matter given the rapid growth of the administrative state and legal constraints on it in recent decades. It may also help to account for convergence and divergence across the common-law world: Commonwealth countries have (largely) a common heritage, one which they treat in different ways, but (generally) in a fashion that is comprehensible to all common lawyers, not just the natives of a particular jurisdiction.
Feel free to download the whole thing. I am breaking the essay up into multiple mini-posts which will appear over the coming weeks. Here is the first in the series.
Comments as always are very welcome. Better to get them now than under live fire on the podium in September!
Much like Ronald Dworkin’s “principles”, administrative law values have weight which varies. In some situations, one of the values will prove more compelling than the others. Often, each of the values can be accommodated, giving varying weight to each rather than treating any one value as determinative; that they overlap and interlock with one another facilitates this approach. As I will explain in more detail in Part III, these features of administrative law values give them clarificatory and explanatory power: they help to clarify and explain areas of the law. They also have normative force, supporting decisions to adopt particular doctrines and decisions in particular cases, and providing benchmarks for criticism when judges fail to give effect to values, or give insufficient weight to values in particular contexts. They are a source, in short, of “reasoned justification” for judicial review doctrines and decisions.
Administrative law values are immanent in the law, found by interpreting existing legal materials. This task involves a process of interpretation which – because it is conducted from a jurist’s perspective – focuses on what lawyers think the law should represent. What proves to be in the materials will depend on who is looking and why: “legal theorists and lawyers (both academic and practising) are necessarily concerned with moral and political values because determining what the law is on any particular topic involves giving the best possible interpretation of relevant legal materials in the light of such values”.
Values are necessarily abstract and acquire “their concrete meaning not only from their explicit treatment in case law (or other official sources of law) but also from the way they are understood by critics and commentators as well as ordinary citizens and public officials”. The search for values involves a process of interpretation by jurists and judges who must resolve doctrinal controversies and concrete disputes between parties. As Taggart observed, “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”.
For example, transparency is an important legal value. Judicial references to transparency, however, are a relatively modern phenomenon. Yet it would be wrong to respond to an invocation of transparency as a legal value by stating that transparency was never explicitly relied upon by courts absent legislative authorization. Although rights of access to records held by public bodies are a comparatively recent legislative development, the common law has long been hostile to secret justice:
The right to know and effectively challenge the opposing party’s case is a fundamental feature of the judicial process. The right to a fair trial includes the right to be confronted by one’s accusers and the right to know the reasons for the outcome. It is fundamental to our system of justice that, subject to certain established and limited exceptions, trials should be conducted and judgments given in public.
Though its name is never mentioned, the value of transparency can thereby be observed. Doubtless, viewing older materials through a modern lens allows legal interpreters to see it more clearly. Nonetheless, it can plainly be said to be a value long present in the common law, of which – to take one example – modern freedom of information provisions are an illustration, not the sole source. Moreover, once enacted such provisions fall to be interpreted against the backdrop of the common law’s immanent values.
It follows that values provide the motor for administrative law. Doctrine is dynamic. It “changes according to current perceptions of what is required of the Courts in their distinctive judicial function”. For example doctrines relating to the right to reasons, error of fact and remedial discretion have been revolutionized or emerged in the last few decades. This is so because “values are dynamic rather than static”, thereby providing an impetus for doctrinal reform.
Interpretation of existing legal materials to identify the immanent values of administrative law will often shed light on the interpreter’s political commitments: “the interpretation accorded to such values will often throw into sharp relief contestable issues that take one back to political theory/theory of the state…” This is unsurprising: “Public law reflects the plurality of commitments reflective of moral and political life”. Sometimes different constellations of values might arise depending on differing political commitments (e.g. libertarian versus liberal): “We may all agree that [values] are central to public law, but the more particular conception or meaning attributed to them will reveal disagreement that is reflective of deeper tensions as to the appropriate background theory”. But these constellations must be drawn from the existing legal materials.
And sometimes, political theory and legal doctrine will merge into one another, without values entering the picture at all. Cynics or sceptics might identify judicial values, preferences that judges have as to the way that public administration should operate. Paul Craig has argued persuasively that doctrines traceable to A.V. Dicey’s constitutional theory are in fact based on a political theory of unitary democracy. Political theory, in this instance, seeped more or less directly into legal doctrine. It remains the case, however, that for judges to avowedly take positions based on political theory is vanishingly rare and would be illegitimate: “direct resort to abstract political theory” may well be “deeply contentious” and take judges “well beyond” their accepted role as “interpreter[s] of existing law”. Thinking in terms of values allows us to more effectively identify ‘political’ decisions where judges rely on political preferences rather than values drawn from extant legal materials.
 See especially, Taking Rights Seriously (Harvard University Press, 1977), pp. 22-28, 94-100, 110-118, 123-130.
 See e.g. Dawn Oliver, Common Values and the Public-Private Divide (Butterworths, 1999), at p. 58: “Valid norms [like Dworkin’s principles] have to fit together into a coherent legal system, whereas values, operating at different levels of importance and often being in conflict with one another, have to be weighed against one another to determine what would be good or best or least worst in a given situation”.
 Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998), 57 Cambridge Law Journal 63, at p. 89.
 Paul Craig, “Theory and Values in Public Law: a Response” in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 23, at p. 24: “On this view, inclusion within positive law may be a sufficient, but not a necessary, condition for inclusion within the list of public law values”. See also Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977), at p. 118: “[The judge’s] theory is rather a theory about what the statute or the precedent itself requires, and though he will, of course, reflect his own intellectual and philosophical convictions in making that judgment, that is a very different matter from supposing that those convictions have some independent force in his argument just because they are his”.
 Peter Cane, “Theory and Values in Public Law”, in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 3, at p. 11 (describing “Dworkinian interpretivism”). Emphasis added.
 T.R.S. Allan, The Sovereignty of Law (Oxford University Press, Oxford, 2013), at p. 334. Emphasis added.
 Michael Taggart, “The Province of Administrative Law Determined?” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 1, at p. 6. Emphasis added.
 See e.g. R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 561.
 See e.g. Scott v Scott  AC 417, at p. 476, per Lord Shaw of Dunfermline: “publicity in the administration of justice…is one of the surest guarantees of our liberties, and [an in camera hearing represents] an attack upon the very foundations of public and private security”; Al Rawi v Security Service  UKSC 43,  1 AC 531, at para. 11, per Lord Dyson: “The open justice principle is not a mere procedural rule. It is a fundamental common law principle”.
 Bank Mellat v Her Majesty’s Treasury (No. 1)  UKSC 38, at para. 81, per Lord Hope, dissenting.
 For a recent authority, see Kennedy v The Charity Commissioner, 2014 UKSC 20, at para. 6, and for an earlier vintage, Board of Education v. Rice,  A.C. 179, at p. 184 (Lord Loreburn L.C.) and pp. 186-187 (Earl of Halsbury).
 I take it that a values-based approach is acceptable to all camps in the “ultra vires” debate, for the ultimate terminus of those who consider it vital to respect legislative intention is that Parliament must be taken to legislate in accordance with the rule of law. See Mark Elliott and Christopher Forsyth, “The Legitimacy of Judicial Review”,  Public Law 286. My approach differs from this “modified ultra vires approach” by emphasizing values, but is entirely consistent with its animating idea: that Parliament “legislates for a European liberal democracy founded on the principles and traditions of the common law”. R. v. Secretary of State for the Home Department, ex parte Pierson,  A.C. 539, at p. 575, per Lord Steyn.
 Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd  2 N.Z.L.R. 641, 653, per Cooke P. See similarly R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 560, per Lord Mustill: “The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type”; R. v. H., R. v. C.,  UKHL 3,  2 AC 134, at para. 11, per Lord Bingham of Cornhill: “Fairness is a constantly evolving concept … it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another”.
 Peter Cane, “Theory and Values in Public Law”, in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 3, at p. 17.
 Paul Craig, “Theory and Values in Public Law: a Response” in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 23, at p. 25. See also T.R.S. Allan, The Sovereignty of Law (Oxford University Press, Oxford, 2013), at p. 337: “Theory is helpful chiefly in illuminating ideas and values that we already recognize and honour – if only in inchoate form – as implicit within existing legal doctrine and practice, capable (we trust) of generating wide recognition and assent”.
 Peter Cane, “Theory and Values in Public Law”, in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 3, at p. 16.
 Paul Craig, “Theory and Values in Public Law: a Response” in Paul Craig and Richard Rawlings eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford University Press, 2003), p. 23, at p. 34.
 As T.R.S. Allan has put it, “our understanding of the concepts of law and legality will in turn suggest the nature and limits of proper recourse to broader dimensions of political theory in the course of adjudication”. The Sovereignty of Law (Oxford University Press, Oxford, 2013), at p. 335.
 See e.g. David Feldman, “Public Law Values in the House of Lords” (1990), 106 L.Q.R. 246; J.A.G. Griffith, The Politics of the Judiciary, 5th ed. (Fontana Press, London, 1997).
 “Dicey: Unitary, Self-correcting Democracy and Public Law” (1990), 106 L.Q.R. 105.
 T.R.S. Allan, The Sovereignty of Law (Oxford University Press, Oxford, 2013), at p. 334.
This content has been updated on June 28, 2014 at 09:43.