Lessons in the teaching of administrative law: A review of The Anatomy of Administrative Law
By Richard Kirkham (University of Sheffield)
Administrative law scholarship has changed in nature in recent years. Abstract debates around ultra vires have been replaced by the more confrontational challenge to the reach of judicial review posed by conservative think-tanks and government reviews. A series of high profile cases have exposed more clearly various fault lines in the public law academy. And a new generation of scholars have queried some of the dominant narratives that have developed around judicial decision-making over the last few decades (eg Nason, Knight). In this vein of revision and reconsideration, Joanna Bell’s The Anatomy of Administrative Law (2020) is a must-read for administrative law scholars, as it offers a highly practical way in which to understand the work carried out in administrative adjudication. A series of posts on the academic debates that this book touches upon (Liz Fisher, Joe Tomlinson and Paul Daly), together with a response from the author, have already been published by the Administrative Law in the Common Law World blog. This short review highlights some of the key learning points for the study of administrative law that can be derived from the book.
Perhaps Bell’s main contribution is to provide us with a method through which to understand the complexity of administrative law adjudication. An underlying theme of the book is that the study of administrative law is difficult, and requires the student to reflect upon an interlinked network of constituent and working features. A failure to appreciate, or underplay, these dynamic aspects of the discipline risks serious failures in understanding and an artificiality in teaching.
That this observation needs to be made is in part because from the 1950s onwards, and encouraged by the procedural reforms of the 1970s, there has been a tendency towards analysing the subject-matter through a series of general principles of administrative law with the aim of providing a reassuring structure, coherence and even purpose to the discipline. This approach has dominated textbook writing and teaching in the field, but is problematic. Bell claims that if we are to comprehend properly the work that is being carried out in administrative law adjudication, this search for a ‘monastic theory’ of administrative law can ‘provide only a part of the necessary intellectual toolbox’ (230). It might be added that the search for uniformity also risks concealing the full value of administrative law.
Bell is sympathetic to some of the benefits and insights within the enterprise of building a singular and systematic approach to administrative law. She notes that such attempts often contain ‘kernels of truth’, such as a universal demand for procedural fairness; that there is an intellectual attractiveness to the ‘intelligibility, coherence and unity’ of the project; that agreed benchmarks help place appropriate constraints on judicial power; and a singular approach might resolve the identity crisis that some believe that administrative law suffers from (210-11). Ultimately though, pushed too far the search for uniformity is ahistorical, impractical and struggles to explain much of the court-level work undertaken in administrative adjudication. She further argues that the dangers of not securing a unified vision of administrative law are overstated.
Thus a secondary contribution of Bell’s work is to provide an extended sceptical critique of approaches to administrative law that promise a singular theoretical account, complete with a consistently applied body of principles, doctrines and tests (see ch.7). As this post is written, an Independent Review of Administrative Law is underway which looks likely to represent an important staging post in the development of administrative law in the UK. If Bell’s anatomical account of administrative law is correct, the Review may lead to a resetting of some of the boundaries of administrative law, but the common law’s inherent evolutionary capacity will likely result in those boundaries being later adjusted to meet the ongoing bottom-up demands of statute, public administration and justice (see Daly). Further, any attempt in that Review to confine the grounds of law within a neat and orderly body of rules is highly unlikely to capture accurately how administrative law as practised.
If administrative law is a pragmatic beast driven by context and Parliamentary direction more than periodic theoretical fashions, then how can the student understand the topic? Bell’s book provides one framework/anatomy through which to appreciate how the process of judicial review manages the demands placed on it (ch.3).
First, Bell highlights that administrative law doctrine is interpreted and applied through multiple legislative schemes, the forms of which are variable. Her work encourages us to teach more about statutory design and perhaps place less emphasis on common law grounds. In addition, the growth of secondary legislation, soft law, regulatory demands, and shifts in the nature of administrative justice and welfare expectations over time, all point towards a scale of complexity and diversity that can only be dealt with through a doctrinal system capable of considerable agility. In this context, the variable evolution of legal doctrine is highly likely.
Second, adjudication is driven by the accommodation of a range of values, some derived from the common law others from legislation. In making this fairly straightforward claim, Bell rejects any attempt to simplify the purpose of administrative law. The relative emphasis on the values of the individual or the public interest, or indeed the promotion of good administration, is dependent on the nature of the decision-making power under review.
Third, the practitioners of administrative law are required to wrestle with a variety of different types of legal relationships, in some of which the relationship between public authority and the individual is paramount, but in others the key relationship is with a wider body of the community or the public at large. These different relationships cannot easily be dealt with through a uniform set of legal solutions.
To provide evidence of how this anatomy of administrative law adds value, three chapters of the book are dedicated to case studies of the law surrounding procedural review, legitimate expectations and standing (chs. 4-6). Bell’s case studies provide a nuanced and convincing picture of the messy and varied work performed by the courts, work which attempts to balance multiple goals and is often heavily influenced by the context of the statutory scheme concerned. This approach immunises Bell’s book from a shortcoming alleged by Tomlinson that ‘much contemporary administrative law scholarship … appears to neglect the realities of the state’ or indeed judicial practice. Too often exaggerated attention is given to a few headline cases, whilst the greater mass of judicial work, and their complex messages, is largely ignored. Bell concedes that her work is partial in that it is heavily court-focused, but her approach to administrative law illustrates the manner in which the judiciary has regularly readjusted its position, often in reaction to legislative developments and shifts in the nature of the broader administrative state. This point is emphasised in a separate chapter covering the history of administrative law from the late 19th century onwards (ch.2).
In the book, Bell makes a number of observations which are of particular use for those of us teaching administrative law. She reminds us that ‘[A]dministrative law in England and Wales was not deliberately concocted at a particular moment in time so as to conform with a singular vision of the field.’ (58) Nor is it likely to settle around one such singular vision if recent heated debates about the role of administrative law are anything to go by. Generalizable principles of law and grand theories may have value as a way in to learning about the subject, but they are of limited use if we do not simultaneously embrace and explain the inherent messiness and organic nature of administrative law as a discipline. In providing an anatomy with which to deal with that messiness, this book is highly recommended.