Notes from Underground
If I say that this a depressing book, I mean it only in the best possible sense. It is a deep dive, almost full-body immersion, into the most troubled part of our dysfunctional state – the immigration bureaucracy – by the only writer qualified and brave enough to do it. Even with so sure a guide, the journey through this particular underworld can be chastening. It is not so much the exposure to the ever-expanding thicket of never-static rules or the revolving carousel of departments, directorates and agencies that apply and as frequently misapply them, nor even the crabbed meanness of so much of what passes for policy in this area. It is that, beyond all this, beyond ’the endless reorganisational churn so characteristic of British governmental practice’ (p.30), reaching the bottom of the miserable power hoard, we are met with the seemingly unalterable reality of deep institutional malaise and systemic operational failure.
Administrative Law in Action is, then, a profound study of administrative craptitude. And if, as the author suggests, administrative law scholarship tends to divide into two – one focused on legal principles applied in court, especially in judicial review, the other on how law intersects with administrative practice – this book is an uncommonly accomplished example of the latter. Truly a 360-degree affair, it aspires to study the object of inquiry not just from the bottom-up and the top-down, but inside-out and outside-in as well (‘in operation and in context’, p.1). Taking as its starting point ‘the policy problems for which administration was created to manage, its functions and goals, and the administrative structures and operations that have been created and developed in order to achieve and implement those policy goals’ (p.278), it navigates through reams of material – legislation, rules, soft law, policies, guidance, reports, cases – revealing in so doing the interactions of a large cast of administrative actors, including the department, its casework and enforcement officials, internal and external complaints bodies, inspectorates, administrative review systems, tribunals, and the courts. It does all this while managing to preserve throughout a clear sense of purpose. Others, staring into this particular abyss, might be inclined to shriek. Thomas’s analysis stays measured and probing throughout, even retaining enough sangfroid to offer recommendations for reform at the end.
There are significant gains to be had from this ‘administrative law in context’ approach – with the LSE as its spiritual home, I could hardly say otherwise. This book is definitely a case in point. It is hard to imagine getting a proper purchase on the law relating to immigration administration through a reading of the judicial review cases, voluminous though these are. Working within what Thomas calls a ‘governance’ as opposed to a ‘legality’ framework (p.3) also offers the kind of fine-grained analysis of the workings of bureaucratic power that was once a staple of British political science but has now virtually disappeared from British politics departments.
There are good reasons why a once dissident perspective has become a fixture within the administrative law mainstream. (Thomas insists that it is still a minority persuasion; my impression is that this has not been true now for decades.) But the genre can suffer from weaknesses, above all a tendency to lose sight of the law. This can happen when a preoccupation with the intricacies of governance leads to the legal elements being marginalised or washed out from the analysis. Or what counts as ‘law’ can become unstable when the administrative practices under scrutiny are viewed through a wider and more capacious lens. These are not necessarily flaws in any straightforward sense, since unsettling cosy assumptions to reveal a messy and plural reality can be the part of the point of the inquiry. Even so, the fracturing of the legal, if that (or something like it) is what the analyst sees, must be handled carefully. It is no longer enough, if it ever was, merely to state that those who equate administrative law with the principles that emerge from judicial review are mistaken. (Does anyone subscribe to this view nowadays anyway?) No, the preferred understanding of administrative law must be defined by the author and elaborated as the analysis progresses.
Administrative Law in Action cannot be accused of marginalising law in any crude sense. For all its extensive treatment of the immigration context, it never loses sight of itself as a distinctly legal inquiry. But I was left wondering about its attempt to articulate an alternative model of administrative law, which is clearly one of the book’s more general aspirations. With Ed Rubin as a spiritual guide, Thomas argues that an understanding of administrative law as a unified set of legal principles overlooks not just the wide range of administrative contexts in which they play out, but also the more basic fact that the growth of administrative governance has transformed the nature of law itself. The standard functionalist conclusion applies: since ‘[m]odern law is principally concerned with making policy and its implementation by administrative institutions’, it follows that our conception of administrative law ought to ‘focus upon the effectiveness of specific governmental institutions in making and implementing law and policy in practice.’ (pp3-4)
But how does this approach, centred on the effectiveness by which public policy is implemented, differ from what students of public administration, public policy or public management do? What is the distinctively legal angle? After references to instrumental rationality and organisational competence which reinforce rather than diminish this concern, Thomas advances the suggestive idea of ‘internal administrative law’. The term, derived from US administrative law scholarship, refers to ‘the internal systems and processes within the administration’, made by senior officials and ministers rather than Parliament or the courts, ‘by which higher-level officials oversee, supervise and monitor the work of front-line officials in order to motivate and manage them and hold them accountable.’ (p.9)
Administrative lawyers continually struggle with blurred lines. Since legal salience does not neatly track legal form, the difference between ‘law’ and ‘not-law’ is not always clear, with varieties of ‘almost-law’ and ‘sometimes-law’ springing up in the gaps. Lawyers have coined a number of equally fuzzy terms to map those parts of their terrain – ‘soft law’, ‘quasi-legislation’ and so on. The question is whether ‘internal administrative law’ manages to transcend its origins as the sort of flashy but ultimately empty buzz-phrase that appeals to student law review editors. Curiously, though, the concept, at least as it appears here, is both under- and over-determined. It is under-determined because, on Thomas’s definition, it would apply to any substantial organisation, not just governmental ones. The LSE, for instance, is a ‘large-scale organisation’ organised ‘primarily on the basis of written instructions, policies, guidance, performance standards and monitoring systems’, very few of which are ‘made by Parliament or the courts’ (p.9). We could, I suppose, call the structure through which higher-level officials in a non-governmental body like the LSE ‘oversee, supervise and monitor’ the work of front-line officials (like me!) ’internal administrative law’. But we tend not to think and speak in these terms. Largely, I suppose, because we want to distinguish certain elements of governmental processes from broadly equivalent operations within non-governmental entities, reserving the term administrative law for the former.
Perhaps we can assume from the context in which Thomas uses the term that we must interpolate some suitably public (i.e. governmental) quality into the definition of ‘internal administrative law’, though I don’t think he says this clearly or explicitly. But even if we do so, the definition remains over-determined. In particular, we are left wondering what reason we have for understanding all this standard operational activity, as it occurs within administrative bodies and processes, as administrative law as opposed to administrative something else. In a condensed paragraph riffing on a quote from F.J. Port’s 1929 textbook, Thomas alludes to the ‘forging the “links in the [bureaucratic] chain”’ and the ‘structure of the links’ as the ‘internal forms of administrative law issued to front-line officials to guide, motivate and constrain their activities’ (p.10). This, he intimates, is what internal administrative law is about. But unless all that happens in public administration is now to be classed as administrative law, this is to confuse legal and non-legal sources of authorisation and obligation (and consequently fails to isolate what is distinctive about the subject).
Thomas suggests that other administrative lawyers who share a functionalist bent have recognised the role of internal administrative law without necessarily using that phrase. John Griffith and Harry Street, he says, ‘noted that the control of administrative bodies and the exercise of their powers were “more a matter of administrative practice than of law”.’ (p.10-11) Their general point is undeniable. But note how careful they are to retain the conceptual divide between ‘law’ and ‘practice’, while appreciating just how entwined the two can be in operation. Like them, I want a theoretical framework that, paying due regard to the legal and the non-legal elements that pervade this space, illuminates and helps us to navigate the tricky boundary zones of our field. But what we get here, at the conceptual level, is an approach that ignores them by focusing on ‘organisational competence’, or evades them by reclassifying everything as ‘internal administrative law’.
There is little evidence of meaningful development of these concepts during the course of argument in the book. Thomas returns to the theme right at the close, but only to restate his earlier point about the limits of court-centred scholarship and repeat the under-theorised claim of a ‘policy-organisational-legal’ approach ‘in which issues of administrative law are inextricable from the policy and organisational contexts of administration’ (p.279). And that’s about it. This must dent the book’s wider aspirations to provide a theoretical template for others. But it does strangely little to detract from the work as a whole. The core of the analysis is administrative law functionalism at its strongest. It has the freshness and sense of mastery of the whole characteristic of the very best writing in that genre. But it also does in practice, if not in theory, exactly what Griffith and Street called for, providing a probing, sophisticated and contextually nuanced account of the ways in which law constructs and structures immigration administration. Time and again, Thomas tells you what you need to know about the context before expertly teasing out and exposing law’s various roles and textures within the wider whole. You see this in the careful handling of the legally tricky issue of policy and guidance in chapter 4, or the equally deft treatment of ‘systemic’ or ‘wholesale’ judicial review in chapter 8. In fact, it is hard to think of a work of administrative law scholarship that so consistently and convincingly brings out the pluriform nature of the legal within the interstices of modern bureaucratic practice. And for that reason it must be read.
Thomas Poole is Professor of Law at the London School of Economics.