Public law and administrative decision-making: Two key questions for research

By Joe Tomlinson

This post, based on a seminar held at King’s College London and supported by the Public Law Project and the UK Administrative Justice Institute, examines the potential for the further development of research at the intersection of public law and administrative decision-making. Speakers at the event included Dr Bernardo Zacka (MIT), Dr Jen Raso (Alberta), Professor Dave Cowan (Bristol), Dr Michelle Waite (Salford), Professor Marc Hertogh (Groningen), and Dr Richard Martin (LSE). The post sets out the need to understand the sociological reality of administrative decision-making and suggests there are, at least, four differing visions of the research agenda in this area. Each conceptualisation of the agenda can benefit the others, by offering distinct forms of both descriptive and normative insight.

Administrative decision-making is at the core of how public power is routinely exercised day-to-day. Officials occupying a wide variety of positions—from caseworkers in the Home Office, to police officers, through to local government caseworkers—collectively make vast numbers of decisions affecting the rights and interests of citizens. Most interactions between individuals and administration start and end with such decisions—relatively few go on to be challenged in another forum, such as a court or tribunal. Given this, it is perhaps surprising that—while other disciplines have developed more robust studies of administrative decision-making—mainstream public law scholarship in the UK often relies on a thin, legalistic account of decision-making, i.e. that public law empowers decision-makers, often through granting them discretion of some kind, and also controls them through law (with emphasis usually put on judicial review as the mechanism of control). Such accounts are, however, insufficient to capture such a significant and complicated relationship and there is therefore a need to understand better the sociological reality of public law in this context. However, moving research forward presents some tricky questions as to the form of inquiry and the role of public law within those inquiries.

This note highlights two central questions that the development of public law research on administrative decision-making must address. First, should a narrow or expansive view of what constitutes the ‘frontline’ be adopted? Second, should law be the focus of research (i.e. law in context) or should spaces of decision-making be the focus, rendering law an incidental or background component (i.e. law as context)? Four broad visions for the development of research on public law and administrative decision-making can be derived based on the combinations of the answers to these questions (see figure 1). Each form or research can benefit the others, by offering distinct forms of both descriptive and normative insight. However, it is important—at least at some stage—to attempt to relate all knowledge produced back to what may be called essential questions of public law, e.g. the interpretation of statutes, the role of common law standards, and the legal framing of discretion.

Two conceptualisations of the ‘frontline’

The first key issue is what the ‘frontline’ of administrative decision-making is taken to be constituted of. A narrow view may be that it is public officials legally empowered to make decisions about the rights and entitlements of citizens. Such a category of decision-makers—although conceived as ‘narrow’ for the purposes of the present discussion—would be an incredibly diverse set of people in practice. Some may be low-ranking officials charged with basic casework tasks. At the same time, other decision-makers may be experts or professionals with their own ethical codes to apply (government lawyers acting as decision-makers are a good example of this). Yet it is also possible to take a more expansive view that the ‘frontline’ of administrative decision-making is made up of a mixture of different people, documents, and things, all of which affect the quality of any interaction between citizens and officials, and the decision-making process. Such an expansive approach may allow for a more detailed impression of how administrative power is experienced. For instance, receptionists who act as ‘gatekeepers’ to formal decision-makers may be critical to understanding how frontline decision-making authority is exercised. So too may be staff carrying out triaging functions. Beyond that, there may even be non-human objects that are considered to constitute part of the frontline. For example, the layout of application forms, computer processes, the layout of decision-making spaces etc. Even the architecture of the spaces in which decisions are made can be said to be a component of the frontline from this more expansive view. With such an approach, the frontline is not just understood as a group of legally empowered officials taking specific decisions but an assemblage of people and things that are in an almost constant state of flux.

As technology becomes a more important part of administration, there are questions about how frontline decision-making functions may be supplanted or modified by technology, e.g. where officials become data entry clerks or where technologies support decision-making. In this context, there are narrow questions about the outcomes that automated decision-making produces and the processes by which they are made, but there are also a range of wider questions about how human officials interact, and perhaps even manipulate, the technologies around them. The use of new technologies in decision-making also gives rise to some important challenges in respect of the key administrative law questions, such as the role of judicial review, the weight automated materials ought to be given, and what a rational automated decision is.

Another task is whether the frontline should also be taken to include the intellectual practices, or normative profiles, of frontline officials. Research continues to identify very different profiles within frontline decision-makers. For instance, Raso’s recent research has found that there was a polarisation of identities for frontline workers, some being almost ‘social work caseworkers’ and others acting as ‘black and white rule enforcers’. Though individuals might identify at one end of spectrum or the other, Raso also found they would engage with other caseworkers and make decisions using justifications that would appeal to both ‘social work caseworker’ and ‘black and white and rule enforcer’ types. Decision-makers are human, moral agents often operating within a variety of demanding circumstances, e.g. understaffed and under-resourced, often routinely in emotionally draining encounters etc. A possibly key question is therefore how morality operates in this environment and how that morality is shaped by the decision-making environment. These are concerns different from traditional questions of political theory, where research primarily relates to the structure of state institutions or ideals such as justice. Conceptualising the frontline as involving the profiles of different decision-making types holds numerous challenges. For instance, any organisational profile is pluralistic and difficult to pin down. Decisions can be shaped by both professional and personal identities, and the assimilation of the two.

There is also the challenge of how research grapples with how the frontline operates as a collective entity, not just individual officials making individual decisions. From one perspective, individual decision-makers make decisions for themselves and the whole body at the same time. On one level, there is the personal professional responsibility invested in making a decision, but at another level, if decisions are appealed or reviewed externally then it is the institution as a collective that defends it as its own decision. The collective element of decision-making can have significant effects too. In many institutions, decision-makers will work together and rely upon each other. The effects of internal management, accountability, and supervision relationships are also often critical. Focusing on individual decision-makers alone would create a very particular snapshot of the decision-making frontline.

What the frontline of administrative decision-making is therefore taken to be constituted of matters greatly in how research on this topic is developed. At one end of the spectrum, a very narrow approach could be taken, where the focus is public officials legally empowered to make decisions about the rights and entitlements of citizens and the core components of the decision-making process. However, a broad conceptualisation of the frontline could also be adopted and perhaps create a more detailed depiction of the exercise of administrative power.

Law in context vs. law as context

Scholars with a legal background, quite naturally, tend to focus on the law and its role in decision-making process. However, it is debatable whether, for the purposes of research on administrative decision-making, ‘law’ should be understood to relate to positive law in the strict sense (statutes, case law etc.) or whether a wider conception of legality (i.e. all aspects relating to the social construction of the meaning of legality) should be adopted. Moreover, there is a question about whether law should be in the ‘foreground’ or the ‘background’ of the study of administrative decision-making. There are two broad approaches here, which can be labelled broadly as ‘law in context’ and ‘law as context.’

Studies of administrative decision-making by socio-legal scholars have often started with an interest in law and worked out from that point, adopting a law in context approach. Some argue, however, that this conventional law in context approach is a distinctive and distorted ‘law-first’ perspective. The application of this approach, it may be suggested, is typically dominated by an expectation of abidance to law. As a result, most studies are consequently quasi-quantitative insofar as they look at how much and how far public officials comply with law. This frame may be particularly limiting where administrative processes—underpinned for instance by ‘hostile environment’ or welfare conditionality policies—are becoming more severe and punitive, possibly creating incentives for both decision-makers and citizens to more proactively avoid the strict application of law and policy. In response to such concerns, research on frontline decision-makers could alternatively take a law as context approach—with research starting with the aim of understanding decision-making spaces and officials, working back to conclusions about the law as one part of that wider enterprise.

If, however, the law as context approach to administrative decision-making is to be adopted, then a tension comes to the fore: what does public law scholarship add to the other disciplines (e.g. public administration) attending to the complex issue of administrative decision-making? By moving away from a primary concern with law, there is a sense research could be abandoning the ‘legal’ while there remain some basic public law questions which are yet to be explored and which require continued attention. One such example is how administrative decision-makers interpret statutes. Recent research from the US has highlighted how, sometimes, approaches of administrators differs greatly from the approach of courts—from where mainstream understandings of statutory interpretation in public law are drawn from. Another example is the role and nature of legal discretion. It is important not to forget these core set of legal questions. By returning to them with a better sociological accounts of this area, we can perhaps more properly embed the important ‘interpretive community’ of administrative officials within a public law scholarship which has been monopolised by the courts.

About the author:

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director of the Public Law Project. Emma Marshall assisted greatly with the production of this note.