Administrative Agencies are a They, not an It
I am as guilty as any writer of referring to “an” administrative decision-maker, or “the Tribunal” or “the Regulator”. But, with apologies to Kenneth Shepsle, administrative agencies are a “they”, not an “it”.
An administrative decision, be it an adjudicative decision or the adoption of a rule or policy, will typically be the product of deliberation within an agency.
Large regulatory bodies have significant numbers of employees with specialisms in different areas requiring different types of technical expertise; these technical staff will be supplemented by employees who deal with the public, procurement, communications and legal issues.
As Professors Fisher and Shapiro observe in their important recent book Administrative Competence: Reimagining Administrative Law (CUP, 2021), at pp. 58-59, the art of good administrative decision-making involves channeling the expertise of these different groups into the process leading to a final decision:
The assessment of contributions from different disciplines is essential in public administration because decision makers in an agency must be able to assess the evidence and conclusions presented by contributory experts in the agency. They must develop the expertise to assess the quality of scientific evidence of risk or the economic evidence on the costs and benefits of a regulation, among other such judgments that are necessary. While the agency decision maker may be able to make some of the necessary judgments based on contributory expertise, as for example a manager may be a scientist who is an expert in assessing risk, other judgments will require interactional meta-expertise. The assessment of contributions from different disciplines enables an agency to conduct a discursive process in which experts from various disciplines can question and critique the evidence and arguments made by experts from other disciplines.
What can be seen is that an administrative agency is more than the sum of its parts. Agencies can call on contributory, interactional, and meta-expertise in reaching a decision. Each of these types of specialized expertise takes on a different form in agency practice, turning each into institutional expertise – an expertise that has been set up for an administrative purpose and is defined by practical reason.
The regulator is not an “it” but rather constituted by an ensemble of experts with specialization in an often dizzying array of areas.
Government departments, similarly, contain numerous silos responsible for different aspects of policy-development and policy-implementation. This is a significant theme of another important recent book, Robert Thomas’s Administrative Law in Action: Immigration Administration (Hart, 2022), which analyzes the UK’s immigration department:
This administrative institution takes the form of a large, heavily staffed operational department focused on individual casework. It has four core tasks. First, to make immigration policy through primary legislation to establish the overall legal framework for immigration operations. Second, to make immigration policy through detailed rules – the immigration rules – that lay down the criteria to determine who can and cannot enter and remain in the country. Third, to administer those policies and rules by making casework decisions on incoming applications to decide which applicants qualify under the immigration rules to enter or remain in the country. Fourth, to ensure compliance with and enforcement of the rules by preventing people without leave to enter from entering the country, and by removing those without leave to remain.
The scale of the enterprise is illustrated by some basic facts. In any particular year, the department receives and makes decisions on approximately four million immigration applications. The immigration rules are over 1,000 pages long and frequently revised. The department seeks to ensure compliance with and the enforcement of immigration law through a variety of different means, such as pre-entry checks, immigration detention, forced removals, deportations and other interventions and sanctions. This complex organisation, with 27,000 staff and a budget of over £2 billion, is organised into various directorates, sub-directorates, and then into various case-working and compliance and enforcement units and teams.
In constitutional theory, a government department might be an “it”, taking the form of a minister responsible to the legislature (see here) but in reality the single minister is large and contains a multitude.
Even administrative tribunals are a they, not an it. True, final adjudicative decisions are taken by an adjudicator: s/he who hears must decide.
But administrative tribunals are collegiate (and hopefully collegial) institutions: regular meetings of tribunal members permit the discussion of legal and policy issues relating to their mandates; draft reasons can be submitted to colleagues or superiors for review and discussion; and members can seek advice on difficult points of law, or have their draft decisions reviewed, by legal counsel for the tribunal. All of these practices are entirely lawful (as long as they are voluntary) and ensure that a good deal of upstream discussion can take place before a final decision is issued. The final decision might bear the name of an “it” but with (quite probably) inputs from an unseen “they”.
This content has been updated on February 6, 2023 at 20:27.