Administrative Law Values II: the Four Values
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. This is the latest in a series of mini-posts. Download the whole essay here.
A. The Rule of Law
My discussion of the rule of law as an administrative law value goes beyond the basic idea, “common to all conceptions of the rule of law”, that “the exercise of all public power must be justified by law”, and follows the suggestion of political theorist Judith Skhlar that it is “an essential element of constitutional government generally and of representative democracy particularly…” I am interested in what the rule of law, as a value, or – in Jeffrey Jowell’s apt phrase “a principle of institutional morality” – requires in a modern liberal democracy with an administrative state. This, it might be said, is a substantive and not merely formal conception of the rule of law.
As T.R.S. Allan has elegantly written, “The equal dignity of citizens, with its implications for fair treatment and respect for individual autonomy, is the basic premise of liberal constitutionalism, and accordingly the ultimate meaning of the rule of law”. As a value in modern liberal democracies, then, the rule of law is concerned with the promotion of individual dignity and autonomy, on an equal basis. Moreover, in terms of judicial review:
As traditionally understood, the distinctively judicial public-law task, expressed in common-law principles of judicial review and statutory interpretation, is the protection of individual rights and interests against undue encroachment in the name of social interests.
As an underlying value of administrative law, it urges judges to have regard to these considerations in fashioning doctrine and deciding individual cases.
B. The Principles of Good Administration
While the value of the rule of law lends itself to succinct statement, the principles of good administration are of a more unwieldy nature. Express judicial consideration is rare. A notable exception is R. v. Monopolies and Mergers Commission, ex parte Argyll Group. John Donaldson M.R. noted that “[g]ood public administration” has a number of concerns: “substance rather than form”; “the speed of decision”; “a proper consideration of the public interest”; “a proper consideration of the legitimate interests of individual citizens”; and “decisiveness and finality”.
A review of the United Kingdom Ombudsman’s Principles of Good Administration and The European Code of Good Administrative Behaviour yields a list with some fifteen entries:
13. Proper purposes
14. Legitimate Expectations
Some of these may be more at home under the general rubric of the rule of law. For example, lawfulness captures the idea that official action should have a legal basis, impartiality is an aspect of fair treatment and proportionality evokes the dignity of the individual by forbidding her use as a convenient means of achieving a particular policy end. Lawfulness and proper purposes are also accommodated by the value of democracy. In very general terms, however, the principles of good administration can be united under the heading of “effectiveness”. Official decisions should be rational, in the sense that they should achieve the ends to which they are directed; policies should be consistent but open to change if required; and both decisions and policies should be transparent and capable of being complied with. The value of the principles of good administration, then, is that of effective policy-making and –implementation.
Depending on the view taken of the rule of law, it overlaps to a significant degree with the principles of good administration, in two ways. First, in The Morality of Law, Lon Fuller identified “principles of legality”, “eight kinds of legal excellence toward which a system of rules may strive”. Roughly, these were that laws should be: general; published; not retroactive; understandable; not in contradiction with one another; possible to comply with; consistent; and possessing some congruence between the published rule and its administration.
These are open to the objection, dutifully made by H.L.A. Hart in a pungent review, that they are merely “principles of good legal craftsmanship”. Fuller himself recognized as much in his ‘Reply to Critics’. Contrasting the enterprise of law with that of managerial direction of subordinates, he commented: “Insofar as the principles of legality (or, perhaps I should say, their managerial analogues) are here applicable they are indeed ‘principles of efficacy’; they are instruments for the achievement of the superior’s ends”. For the purposes of describing the ‘internal morality’ of managerial direction on the part of government, Fuller dropped from his list generality, congruence and retrospectivity. One can quibble with his decision to exclude congruence, which is surely an aid to the efficacy of regulation. But the general point should be clear. Some aspects of the rule of law can be described as principles of good administration.
Second, a concern for individual dignity and autonomy can be said to underpin the principles of good administration. Joseph Raz identified eight principles similar in nature to Fuller’s, emphasized that they facilitate autonomy and protect individual freedom, and went on to suggest that “[m]ore important than both these considerations is the fact that observance of the rule of law is necessary if the law is to respect human dignity”.
However, there is a difference between the approach taken by Raz and that taken by Allan. For Raz, the principles of good administration further autonomy, liberty and dignity. Allan goes much further. Autonomy and dignity, on his approach, require much more from judges: a commitment to the enforcement of fundamental rights, for example; and, in particular, attention to the justification of exercises of public power in particular cases:
Judicial review of governmental acts and decisions…reinforces the requirement of moral justification: it allows the citizen to explain his grievance, by recourse to arguments of fairness and reasonableness, and obliges the state to furnish him with satisfactory answers.
And yet, attention to the principles of good administration is necessary to round out Allan’s approach to the rule of law. Consider the following passages:
Although the exercise of executive discretion cannot, by definition, be wholly governed by general rules, previously declared, it is none the less constrained by specific purposes, capable of articulation in terms of an intelligible account of the public good. Rights of procedural due process against public agencies can therefore enable a person to influence executive action, questioning its purported justification in the light of relevant facts…
Legislative and administrative distinctions or classifications must be reasonably related to legitimate public purposes, reflecting an intelligible view of the common good, consistently maintained, and compatible with the basic principles of the legal and constitutional order.
The references to “specific purposes”, “legitimate public purposes” and the “common good” open the door to considerations of the more mundane principles of good administration. For one cannot know what constitutes the common good without considering the effectiveness of a government policy or decision. By definition, an illogical or irrational (say) decision cannot further the common good or serve a legitimate public purpose. In Allan’s rendering of the rule of law, these considerations are understandably secondary, but they are of independent importance, capable of guiding judicial decision-making by emphasizing effectiveness of policy- and decision-making. Plainly, however, the rule of law and principles of good administration overlap to a significant extent.
By “democracy”, I mean to capture a range of ideas. Majority decisions to pass legislative measures ought to be respected (within constitutional limits). Where legislatures have passed laws, courts ought to pay attention to those laws. Courts, it is widely accepted, are under an obligation to give effect to legislative intent. How to discern legislative intent is a controversial question. One uncontroversial effect is that exercises of government power ought to have a basis in law and be true to the purposes for which they were granted.
As with the rule of law – formal conceptions of which have gradually given way to substantive conceptions – the value of democracy is open to competing conceptions. In the modern Western world, democracy is a substantive concept, not a statistical one. A process of simply counting voters’ heads and legislators’ hands is not sufficient unto the modern day. Democracy implies participation by all citizens in the formulation and debating of policy, inside and outside the tight confines of election campaigns. Active citizens have voices and those voices should be heard in various forums designed to permit participation and deliberation. As Dicey made clear, legislative authority is exercised by legislators aware that they must face re-election and that there are limits to the acceptable exercise of their powers. Citizens, politicians and decision-makers should be allowed to interact in an ongoing process of elaboration of shared values:
This is the ideal of the active citizen who is not a mere subject of the law content to receive his due as long as what he gets lives up to one or other political theory. The active citizen can require more than a legal warrant in positive law for official coercion, for he is equipped with resources to participate in the making of the law and to hold officials to account by principles of fair participation.
In federal systems, democratic institutions exist at a level below national governments. Yet the animating idea is one found in many, if not all, legal systems. A pan-national system like the European Union recognizes the principle of subsidiarity, which “aims to devolve the administration of the law so that it is closer to the people and to the issue in question”. And even unitary legal systems – such as the United Kingdom prior to devolution, or Ireland or New Zealand – devolve some powers to local government in the belief that they are more effectively exercised by officials and elected representatives who are closer to the citizenry.
Democracy and the rule of law are intimately related:
A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the “sovereign will” or majority rule alone, to the exclusion of other constitutional values.
Effectiveness too underpins the values of the rule of law and democracy. Decisions that are ineffective because they are irrational or serve improper ends offend the value of the rule of law as much as they do the principles of good administration. And ineffective decisions sap the legitimacy of administrative decision-making structures established by legislative majorities.
D. Separation of Powers
It has been said that the concept of the separation of powers is “infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds”. Indeed, the modern administrative state has long since dispensed with rigid compliance with separation of powers: neat distinctions between legislative, executive and judicial functions have long since fallen out of favour. Attention to the value of democracy requires no less, as it is legislatures that have created novel structures to address novel challenges and thereby “deranged our three-branch legal theories”.
Nonetheless, the concept of the separation of powers incarnates the idea of checks and balances, that “foxes should not guard henhouses”. That power ought not to be concentrated in one branch of government suggests the desirability of “multiple mutually reinforcing forms and criteria of accountability”. Accountability is a capacious concept, but the core idea is that decision-makers should have to render an account of their actions to some external party – a higher-up, a court, the legislature, the market, civil society.
The affinity with other administrative law values is close. Attention to the separation of powers enhances the value of democracy by reminding unelected decision-makers of the need for caution in addressing matters that may better be left to elected representatives. Moreover, the role of the courts “cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail”. Separation of powers underpins the rule of law and principles of good administration by reducing the possibility of arbitrary official decision-making.
It is evident from the foregoing discussion that I reject a clear distinction between principle and policy; hence my preference for the term “values”. Taking account of and giving effect to the value of the principles of good administration (and perhaps too the value of separation of powers) requires taking account of and giving effect to considerations of policy, understood as “an improvement in some economic, political or social feature of the community”. Judges do not have to determine whether the policies are good or bad, but they do have to form a view on the most efficacious means of fulfilling them. A distinction between principle and policy therefore entails a risk of confusion.
Values can be identified at varying levels of abstraction. My choice of values aims to find a middle ground, between values abstract enough to cover the whole of the common law enterprise and those so specific that they may not cover all of the administrative law enterprise. Whether my choice is a fitting one or not depends on how effective the values I have identified are in explaining, clarifying and justifying the various doctrines discussed in the next section.
 Sir John Laws, “Wednesbury” in Christopher Forsyth and Ivan Hare eds., The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon, Oxford, 1998), p. 185, at p. 192.
 “Political Theory and the Rule of Law” in Allan Hutchinson and Patrick Monahan eds., The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987), p. 1 at p. 16.
 “The Rule of Law Today” in Jeffrey Jowell and Dawn Olivers eds., The Changing Constitution, 5th ed. (Oxford University Press, Oxford, 2004), p. 1 at p. 19. [Need newer reference].
 Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: an Analytical Framework”,  Public Law 467. But see Michael Taggart, “The Tub of Public Law” in David Dyzenhaus ed., The Unity of Public Law (Hart, Oxford, 2004), p. 455, at p. 456: “the Rule of Law, being all things to all people, can be made to cohere with almost any reading of the common law tradition”.
 Constitutional Justice: a Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001) at p. 2.
 “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”. Tom Bingham, The Rule of Law (Penguin Books, London, 2011), at p. 55. See also David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 279.
 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. 15.
 It seems that the phrase was first introduced by D.J. Galligan, “Judicial Review and the Textbook Writers” (1982) 2 O.J.L.S. 257. Most writers have treated them as co-extensive with the existing grounds of judicial review:
They include the requirement of “fairness” in its various guises, and they prohibit the fettering or delegation of discretion, abuse of power, arbitrariness, capriciousness, unreasonableness, bad faith, breach of accepted moral standards, and so on. They require, in other words, legality, rationality, procedural propriety and possibly proportionality.
Dawn Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?”  Public Law 543, at p. 543. See similarly Mark Elliott, “The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law?” (1999), 58 Cambridge Law Journal 129.
  2 All E.R. 257.
  2 All E.R. 257, at p. 266.
 (PHSO-0188, 2009).
 (E.U. Publications Office, 2013).
 The Morality of Law rev. ev. (Yale UP, 1969), at p. 41.
 For a similar list, but a very different view of its legal and political import, see Joseph Raz, “The Rule of Law and Its Virtue” in The Authority of Law, 2nd ed. (Oxford University Press, Oxford, 2009), at p. 210.
 (1965), 78 Harvard Law Review 1281, at p. 1285.
 The Morality of Law rev. ev. (Yale UP, 1969), at p. 209.
 The Morality of Law rev. ev. (Yale UP, 1969), at p. 214.
 “The Rule of Law and Its Virtue” in The Authority of Law, 2nd ed. (Oxford University Press, Oxford, 2009), p. 210, at p. 220.
 “The Rule of Law and Its Virtue” in The Authority of Law, 2nd ed. (Oxford University Press, Oxford, 2009), p. 210, at p. 221.
 Constitutional Justice: a Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001) at p. 9. See also David Dyzenhaus, “Law as Justification: Etienne Mureinik’s Conception of Legal Culture” (1998), 14 South African Journal on Human Rights 11.
 Constitutional Justice: a Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001) at pp. 17, 22.
 It is arguable that legitimacy of purpose cannot be considered without regard to effectiveness (though see Paul Craig, “The Nature of Reasonableness Review” (2013), 54 Current Legal Problems 1). In a recent Canadian case, which otherwise disclaimed the possibility of having regard to effectiveness when considering the vires of delegated legislation, it was nonetheless said that in egregious cases of regulations irrelevant, extraneous or completely unrelated to statutory purpose, a court could find them to be ultra vires. Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64,  3 S.C.R. 810, at para. 28.
 See e.g. Richard Ekins, The Nature of Legislative Intent (Oxford University Press, Oxford, 2012).
 This is true (and I think the cases discussed below support my view) but it poses very important questions of legal and political theory. These I do not engage, comforted by the following passage from David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?” in Christopher Forsyth ed., Judicial Review and the Constitution (Hart, Oxford, 2000), p. 141, at pp. 162-163:
Positivists think that they can without cost recognise that in any relatively stable society over time the law will come to express some or other vision of the common good. That vision will provide the substantive values which get implemented and enforced through the institutions which together make that society into one governed by the rule of law.
 Ronald Dworkin, Freedom’s Law: the Moral Reading of the American Constitution (Oxford University Press, New York, 1996).
 See e.g. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Belknap Press, Cambridge, 1996).
 See e.g. Stephen Breyer, Active Liberty: Interpreting our Democratic Constitution (Alfred A. Knopf, New York, 2006).
 Introduction to the Study of the Law of the Constitution, 10th ed. (E.C.S. Wade) (Macmillan, London, 1961).
 David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?” in Christopher Forsyth ed., Judicial Review and the Constitution (Hart, Oxford, 2000), p. 141, at p. 172.
 Defined in Article 5 of The Treaty of the European Union:
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
 Christoph Ritzer, Marc Ruttloff and Karin Linhart, “How to Sharpen a Dull Sword – The Principle of
Subsidiarity and its Control” (2006), 7 German Law Journal 733, at p. 736.
 Shell Canada Products Ltd. v. Vancouver (City),  1 S.C.R. 231 (dissenting opinion of McLachlin J.).
 Reference Re Secession of Québec,  2 S.C.R. 217, at para. 67.
 Geoffrey Marshall, Constitutional Theory (Oxford, Clarendon, 1971), at p. 124.
 Eoin Carolan, The New Separation of Powers (Oxford University Press, Oxford, 2009).
 Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, at p. 487 (1952), per Jackson J.
 Cass Sunstein, After the Rights Revolution: Re-conceiving the Regulatory State (Cambridge, MA, Harvard University Press, 1990), at p. 143.
 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. 15.
 See generally, Michael Dowdle ed., Public Accountability: Designs, Dilemmas and Experiences (Cambridge University Press, Cambridge, 2006).
 R. (Cart) v. Upper Tribunal,  EWHC 3052,  1 All E.R. 908, at para. 37, per Laws L.J.
 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977), at p. 22.
 See also Jeff A. King, “Institutional Approaches to Judicial Restraint” (2008), 28 O.J.L.S. 409, at pp. 416-419.
 Dawn Oliver, Common Values and the Public-Private Divide (Butterworths, 1999).
This content has been updated on July 5, 2014 at 16:06.