Paul Daly: The General, the Specific and the Anatomy of Administrative Law

Editors: This is the third in a series of posts engaging with Joanna Bell’s new book – The Anatomy of Administrative Law (Hart 2020).

[Administrative law] cases range over many thousands of statutory provisions: this militates against any effective doctrine of stare decisis and explains why administrative law is primarily a subject of obiter dicta, with hallowed passages, such as the Wednesbury rule or the Carltona principle, offering judges convenient shorthand principles in the application of the ultra vires rule.

D.G.T. Williams, “Statute Law and Administrative Law” [1984] Statute Law Review 157, 160.

I am not sure I would go quite as far as the late, great Professor Sir David Williams in saying administrative law is simply about “application of the ultra vires rule”, but he powerfully expresses the idea that the general principles of judicial review of administrative action represent collections of barnacles stuck on the hulks of various statutory provisions.

In The Anatomy of Administrative Law,Joanna Bell gives contemporary expression to the same idea, but with greater force: she maintains it over a substantial manuscript touching a diverse range of areas of administrative law, namely procedural fairness, legitimate expectation and standing.

Moreover, Dr Bell expands upon Professor Williams’ idea, describing the three features of administrative law which lend it an inherent complexity: administrative law cases involve (as Williams recognized) the interpretation of discrete statutory provisions, not the articulation of sweeping general principles; in administrative law cases, judges juggle a plurality of principles, purposes or values and cannot rely on one unifying meta-concept; and the protagonists in administrative law cases find themselves in different relationships, sometimes tied together by general norms, sometimes by individualized decisions highly specific to the circumstances of the parties. This is the anatomy of administrative law and, she argues, we must appreciate it in order to understand the subject.

Dr Bell’s is an important book, well worth reading from front to back and with care. It is the latest contribution to a growing field. Anglophone administrative law theory (outside the United States) has exploded over the last decade, with a multiplicity of monographs and edited collections devoted to critical analysis of the general principles of administrative law, mostly published under the same Hart Publishing/Bloomsbury banner under which the Public Law Conference designed by Professors Mark Elliott and Jason Varuhas has flown. It bears mentioning, I think, that female scholars have been to the forefront here, as Dr Bell’s book joins Dr Sarah Nason’s Reconstructing Judicial Reviewand Dr Janina Boughey’s The Newest Despotism?as one of the most thought-provoking recent contributions to the field (to which one could add symposium participant Professor Liz Fisher’s trail-blazing Risk Regulation and Administrative Constitutionalism).

Why all these interesting contributions? As Dr Bell recounts, the common law world’s procedural reforms of the 1960s to 1980s had a significant influence on the trajectory of administrative law. Prior to the creation of a unified application for judicial review, judges used the prerogative writs to control public administration. Retrofitting these writs to a state apparatus which was expanding to assume new managerial, regulatory and welfare functions was a significant challenge. The reforms were designed to respond to procedural difficulties of a technical nature. But they had far-reaching consequences. Just as the abolition of the writ system in (for want of a better term) private law a century earlier precipitated the development of general principles of tort and contract, the sweeping aside or relegation in importance of the prerogative writs set the scene for the elaboration of general principles of administrative law. In this process judges and academics have been engaged ever since.

Sterling work has been done in elaborating these general principles – essentially of legality, rationality and procedural fairness – and attention has now turned to identifying higher-level principles, purposes or values that animate administrative law, tracing cross-border influences and analyzing large databases of decisions against sophisticated quantitative and qualitative metrics. A concern for doctrinal coherence has been supplanted by interest in the construction of theoretical frameworks; comparative analysis is growing in relation to jurisdiction-specific studies; and there is new or renewed interest in the work of lower courts and front-line decision-makers as opposed to that of apex courts.

Dr Bell’s book is jurisdiction-specific in its focus on England and Wales but it is animated by the (de)construction of theoretical frameworks and based on careful analysis of a large set of first-instance decisions. As such, it surfs the contemporary wave of new administrative law scholarship.

As mentioned, Dr Bell identifies three sources of complexity in administrative law: the influence of statutory schemes; the plurality of principles, purposes and values; and the different legal relationships between decision-maker and individual(s). These she demonstrates by reference to three highly contested doctrinal areas – procedural fairness, legitimate expectation and standing – and sets out to dismantle claims that these areas are united by a meta-principle, meta-purpose or meta-value.

But Dr Bell’s is not simply an exercise in deconstruction. Recognizing the variability of administrative law does not lead us to a wilderness of single instances. Rather, focusing on first-instance decisions on procedural fairness, legitimate expectation and standing, Dr Bell identifies a significant degree of coherence. Procedural fairness is tied together by heavy reliance on procedural codes and the rights to receive notice and make representations; legitimate expectation cases can be understood by reference to the four major scenarios judges are called upon to address; and standing is often determined by reference to the grounds of review the claimant seeks to invoke. Thus Dr Bell deconstructs and reconstructs the law of judicial review of administrative action by reference to the variability – across statutes; across principles, purposes and values; and across relationships – characteristic and perhaps constitutive of administrative law.

In her contribution to this symposium, Professor Fisher argues that Dr Bell’s major contribution lies in the development of a novel methodological approach. With this I partly agree. The point of Dr Bell’s incisive anatomical exercise is, after all, to expose the true nature of administrative law doctrine. At least in part, the methodology is indeed the message.

I think, however, that The Anatomy of Administrative Law falls in familiar administrative law territory, somewhere between those who see a subject comprised of general principles and those who see a multitude of specific areas with little in common other than that they are subject to the supervisory jurisdiction of the superior courts. To put it mischievously, Dr Bell argues that both the meta-theorists and their nihilistic antagonists are misguided. The truth is somewhere in between.

What of those of us who would situate themselves between these two poles? I have argued that administrative law is a body of general principles best understood in terms of judicial solicitude for a plurality of valuesrespect for individual interests, effective and efficient public administration, electoral legitimacy and decisional autonomy. I am not quite a meta-theorist, but I am certainly not a nihilist. My interpretive values-based approach is pitched at the level of black-letter law as expounded by apex courts, however, not first-instance judicial review decisions by busy judges. Put another way, my methodology is interpretive, not analytical, and my target is the general principles developed by apex courts, not their application on the front lines. Dr Bell and I find ourselves in similar territory but tracking different game. Nevertheless, when the methods of a neighbour (and those of her fellow new-wavers) yield such a plentiful bounty, they cannot be ignored. Dr Bell’s excellent book is thus an important reminder to those of us who seek a coherent set of values capable of unifying the general principles of administrative law that our search must have careful regard to the heterogeneity of contemporary administrative law. To understand the subject, we must first understand its anatomy.

Paul Daly holds the University Research Chair in Administrative Law & Governance at the University of Ottawa (Faculty of Law, Common Law Section).