A response to reviews of Administrative Law in Action
Over the last few months, Tom Poole, Ingrid Eagly and Alice Welsh have written excellent blog posts engaging with my new monograph, Immigration Administration: Administrative Law in Action. The first thing I want to do is to thank these distinguished and expert contributors for their time in reading the book and for commenting so carefully and thoughtfully.
I also want to recognise that I have been fortunate. I wrote the book during the lockdowns of 2020-21, which now seem like a distant memory. They gave me the opportunity to do something that I had long thought about, but had never really got round to actually doing: writing a book on administrative law by centring the analysis and discussion around the work and operations of particular government agency: the immigration department. The basic idea was to analyse administrative law by taking a particular government body as the principal focus and then examine the issues and problems that arise.
I wanted to do this for various reasons. I knew quite a bit about the UK’s immigration system and department, but had previously found it difficult to get my head around how to structure and conceptualise a study of it from an administrative law perspective. Writing a book like this could provide a quite different angle on law and administration. There had also been important developments that had to be examined. For instance, the Windrush scandal had been a major failure of administrative law within government. The intense injustices imposed upon Windrush people had their roots deep within not just immigration policy and its administration, but also important features of the immigration department’s institutional behaviour.
Approaching administrative law from a governmental perspective raises a range of issues that are largely overlooked by a court-focused approach. Conventional areas of inquiry such as the scope and intensity of judicial review remain important, but they become just one of many problems. At the outset, it is necessary to grapple with how a particular administrative body performs its functions and tasks, how its makes and implements policy and how it is controlled and held to account. More specific issues the detail of what the specific agency does, such as: making rules, organising casework decision-making, enforcement and compliance and so on. The specific nature of the issues and administrative functions involved in any particular policy context will vary in light of what government is trying to do and how it is trying to do it. There is also a wider set of overarching issues: institutional organisation, behaviour and culture, resource allocation, accountability amongst others. These issues are complex and very unfamiliar, but they need to be analysed and considered.
I need to point out that adopting a government-focused approach to administrative law does not in any way mean exalting executive power. On the contrary, it gives us a better-informed perspective from which to understand the position and needs of people who interact with government and what can be done to improve how they are treated. It also widens our perspective on the issues and problems topics that fall within ‘administrative law’. Take Windrush, arguably one the worst and most extensive episode of mass administrative failure and injustice over recent years. Yet, it was not exposed through judicial review, but through the media, political scrutiny and then the Windrush report commissioned by the Home Office.
The real solutions to this and other systemic failures are to be found in improving how government makes and implements policy and its internal knowledge, controls, behaviours and culture. As Tom Poole points out in his review, the book goes into some depressing and dark places, but this is necessary if we are to understand government and its dysfunctions. I would also point out that there are also risks here as an author. It is easy to become normalised to such appalling behaviours from government. There is also the risk of assuming that all government bodies are like the immigration department, which is fortunately not the case.
The big point I am making about administrative law scholarship is not an original one. It has been made several times before. Nonetheless, it is important one. Judicial review and legal doctrines are, of course, very important, but they are only part of a much larger universe of administrative-legal activity. As administrative lawyers, we need to investigate this larger and more complex picture: what administrative institutions actually do, how they do it, how they are held to account – partly by courts yes, but also by many other redress and scrutiny bodies. This involves extensive research into the reality of administrative practices.
Approaching administrative law from this wider point of view is certainly challenging. The focus of legal education and much administrative law scholarship centres upon legal doctrines and the courts. Fortunately, there is a well-established and developing literature in this vein. Harlow and Rawlings’ Law and Administration is a classic text. I would like to highlight another important book, Administrative Competence: Reimagining Administrative Law by Liz Fisher and Sidney Shapiro. This is a must-read for anyone interested in administrative law. I found the book very enlightening. Fisher and Shapiro correctly argue that the concept of institutional competence is central to understanding how administrative law works in practice.
Back in 2006, as the immigration department was emerging from one of its crises, the then Home Secretary, the minister who leads the Home Office, described it as ‘not fit for purpose’. This was an unprecedented statement by a minister about their own department. It is central to understanding government and the minister-civil service relationship. Yet, at the time, I struggled to make full sense of this as an administrative lawyer. Here was a minister saying his own department was basically useless, but much of my training and education as an administrative lawyer has been largely focused on the role of the courts. I had been taught to think like a judge and to engage in legal reasoning when analysing the doctrines and theories of judicial review. How was the Home Secretary’s criticism of his own department connected with administrative law?
Once you think about administrative law in terms of institutional competence, it all makes sense. The immigration department needs to be held accountable through judicial review – and also tribunals, ombuds, the National Audit Office, parliamentary committees, its dedicated inspectorate and so on – precisely it is not sufficiently competent as an administrative organisation. Windrush happened because the political drive to get tough on immigration was implemented by an institutionally incompetent department resulting in both policy failure and intense harms to innocent people. As Liz Fisher correctly highlights, to understand this wider world of administrative law, we need to broaden our imagination and engage in creative thinking about what administrative law actually is and where its boundaries lie. Those boundaries certainly go way beyond the law reports.
Given all this, there is enormous potential for administrative lawyers to investigate the work of government and the complex relationships between administration, law and politics. Administrative lawyers are well-placed to undertake this type of work and indeed, they must do so in order to understand their discipline. There is no shortage of materials to work with and many different areas of government to focus in on. The fact that this work is challenging and complex gives us a very good reason for doing it.
Finally, I would like to note that I have been fortunate in a different way. Once I got into writing the book, it seemed to take on a life on its own and my job was merely acting as a conduit for bringing together a wide range of materials and analysing and placing it all within a conceptual framework. This was an enjoyable experience and it kept me preoccupied. As Seneca noted, ‘when one is busy and absorbed in one’s work, the very absorption affords great delight’.
Robert Thomas is Professor of Public Law at the University of Manchester