LAW1081: The Individual and the State 2021-22

Lecture 13: administrative rationality and the independent review of administrative law

Essential reading
 Roger Masterman and Colin Murray Constitutional and Administrative Law (Pearson,
2018) chapter 8 (especially 265-284); and 506-516

Recommended reading
 Carol Harlow and Richard Rawlings Law and Administration (3 ed, Cambridge
University Press, 2008), chapter 1
 The Independent Review of Administrative Law:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/970797/IRAL-report.pdf
 ‘A collection of responses to the Independent Review of Administrative Law (IRAL) by
the UK Administrative Justice Institute (UKAJI)
‘https://ukconstitutionallaw.org/2020/11/18/a-collection-of-responses-to-the-
independent-review-of-administrative-law-iral-by-the-uk-administrative-justice-
institute-ukaji/

Outline
• Distinction between review under HRA and judicial review in administrative law
• What is the executive?
• Red and green light theories of the state
• Independent Review of Administrative Law

Human Rights Act 2001 versus Judicial Review

1. HRA: a statute that incorporates the European Convention on Human Rights into UK
domestic law:
• Courts must ‘take into account’ ECHR jurisprudence when interpreting the rights
enshrined under the HRA (s 2)
• Judicial review: a set of rules developed in the common law. They do not attempt to
enshrine international standards

2. HRA: individuals can bring claims against a public authority (s 6) to challenge whether
they have acted in compliance with human rights standards.
• Judicial Review: individuals can bring claims against a public authority to challenge
whether they have acted in compliance with the rules of judicial review.
• (Different rules on standing/definition of public authority)

3. HRA: Courts must interpret the provisions of an Act of Parliament ‘so far as it is possible
to do so’ in conformity with human rights enshrined in the HRA (s 3).
HRA makes a judgment on the substance of the act of parliament.
Judicial Review: JR: there is rarely judgment on the substance of an act of parliament
(except under the heading of rationality). Usually try to consider whether public authority
acts within confines of act of parliament.

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However, s 3 HRA is similar to the modified ultra vires theory of judicial review: the courts
will provide the act of parliament with an interpretation that is consistent with the rule of
law, unless the language in the act of parliament explicitly states that it does not intend to
comply with the rule of law.

4. 4. HRA: s 4: Declaration of incompatibility if it is impossible to read the act of parliament

as being compliant with the human rights standards.
Judicial Review: if parliament explicitly states it does not intend to comply with the rule of
law, the courts will go no further.

The State:
 This module is called ‘the individual and the state’. To a large extent, we have
focused on the mechanisms used to protect the individual and individuals from ‘the
state’, but we haven’t really talked very much about ‘the state’ and its appropriate
role. To some extent, we have been able to avoid this and focus more on the scope
of rights. But when it comes to judicial review, there are often issues about the
nature and appropriate roles and functions of the state.
 There is a tendency for students to presume that public law, or constitutional law, is
simply about ‘rights’ and constraining the state. That is not the whole story. Public
law is not just about constraint but also empowering the state. The state is capable
of great harm, but also great good: it can protect us from the vicissitudes and
exigencies of life; from private power (eg., corporations, interest groups, elites). 1 The
state can be our enemy; but it can provide us with health care, social welfare, and
defence from external enemies. So there is a tension in our understanding of what
the state is for. We will return to this point when we look at red and green light
theories of the state.
 So we need to talk about ‘the state’. In practice, what we mean by ‘the state’ is the
executive. Judicial review is really all about the scrutiny of the executive, and
executive action.

The executive in the constitution

 As noted in your UK Con class, ‘The executive is the largest, most complex, and most
powerful part of the state.’
 So, some of the following you will have gotten from UK Con, but perhaps not in such
depth. In UK Con and other modules, you tend to see parts of the executive. But the
aim of this lecture is to give you a wide angle view, before we get into the nitty gritty
of administrative law and judicial decisions.

Who or what is the executive?

 So who, or what is the “executive”? Is it Prime Minister Johnson? Is it Cabinet? That
is, the group of ministers who determine most government policy? Or is it the civil
service—who stay on in spite of changes to the elected government? Is it the police
and local government? The answer is that it is all of these people, and organisations.

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Indeed public law is (arguably) about the constraint of all power—not just state power, but also private forms
of power (eg., large corporations)—but this lies outside the boundaries of this module.

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  As your UK Con lecture noted: ‘The UK Government is, in formal terms, appointed by
and acts on behalf of the Queen. By convention, though, as noted above, the Prime
Minister and other ministers are chosen from and accountable to Parliament. While
executive powers are formally vested in either the Crown (which acts on ministerial
advice) or in individual ministers, and ministers are legally and politically accountable
for the Government’s decisions, in practice most of the business of government is
done in government department by civil servants.’ That is an excellent definition, but
it is not easy to visualise or understand.
 Part of the problem lies in the history of the British state. You can see it in the
confusing terminology. In the past, the Monarch was the state. Hence, the state was
also known as ‘the Crown’. Over time, these separated; and the UK became a
working democracy. So for instance, as we shall see, the monarch still has some
personal prerogatives, but most state powers have devolved onto elected officials—
ministers. But the state is still called the Crown. Ministers wield the power of the
Crown, meaning, they wield the power of the state. In some ways, then, it might be
easier to understand the executive as a chain of delegation.
 You must also remember that in the UK there is a partial fusion of executive and
legislature. The government comes from Parliament: most members of the
Government or executive are chosen from within Parliament. But Parliament and the
executive are different. The legislature consists not just of those running the
government—right now, the Conservatives—but also those from the opposition—
Labour, the Scottish National Party, the Liberal Democrats. They are different.
Parliament enacts the law; the executive implements the law. Parliament does not
govern; it is the executive which governs.
 Usually, when we refer to the state, we are talking about the executive, we are
talking about those who are using the power and resources of the state: Cabinet, the
Prime Minister, and sometimes, the civil service, executive bodies like the police.

What does the executive do?

 The executive is really the most dominant and most powerful of the three branches.
The executive executes or implements the law—or in a mundane way, it governs or
runs the country. It is governing the country on a day to day basis, making complex
decisions every day. Health, security, taxation, business rates, social security, foreign
affairs, immigration—everything you can imagine. Its reach is massive. But it is also
the great initiative taker—the executive, rather than the legislature, begins and
mostly controls the law making process, for instance.
 It is important to think about the executive and its role carefully. Decisions in
modern day government must be made, and made quickly. Think of going to war;
foreign relations; civil emergencies—these are decisions that the other branches
would take too long, and who would lack the expertise to make.
 We can compare the judiciary, which is a very different institution. It decides cases. It
is usually dealing with two parties on issues which are limited to those two parties. It
requires reasoned debate, and acts on previous decisions (precedent). It is reactive,
passive: it has to wait for issues to come to it. We can contrast all this with the
executive, which is required to be active, even pro-active. The legislature consists of
over 1000 people, none of whom are fully in charge: can they really make a decision

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 quickly? It is doubtful that the legislature has the time, or the expertise for everyday
decisions. It is also hard to tell where responsibility for decisions would lie.
 Do think about what the executive is doing. It is responding and dealing with several
problems, many of which involve multiple parties and sometimes several issues. That
is, it is dealing with polycentric issues—issues which have many centres.
 Finally, it is worth pointing out that the executive is limited in key ways: it must work
with limited or scarce resources, which means that it sometimes has to make choices
in which no one will be satisfied.

The structure of the executive

The Monarch
 Most of the powers of the Monarch are now exercised by Ministers—like going to
war, or entering into treaties. But fact the Monarch still has a small number of
personal prerogatives, such as the prerogative to choose the PM, to advise and
query the government, and the power to refuse assent. However, all these powers
are heavily constrained by constitutional convention. I say no more about them here
because they are not the subject of administrative law.

The Political Executive

The PM
 The Prime Minister is primus inter pares (first amongst equals) in Cabinet. He, or she,
is the leader of the governing party, who run the executive. It is his or her job to
bring unity to the government, and ideally for the country.
 The office of the PM is a constitutional convention. The PM is not mentioned in any
statute. In law he or she is just one amongst many ministers. She has very few formal
powers whatsoever. And she has a tiny, tiny staff compared to the big Whitehall
departments.
 But in practice he or she can be quite strong, or weak. It depends on his or her
personality, experience, the size of his or her majority in the Commons, her
popularity with colleagues and the public. Overall the PM needs the support of his
ministers.

Cabinet and ministers

 Cabinet consists of the senior ministers of the Government: the PM and the
Secretaries of State. In traditional constitutional theory, Cabinet is the ultimate
decision maker. It is the place where key political decisions are discussed and
decided.
 Senior ministers are called Secretaries of State. They are responsible for major
Whitehall departments. Each of these departments has a subject area: defence,
foreign affairs, treasury, business, Brexit and so on. 2 Below Secretaries of State are
the more junior ministers: Ministers of State; and Parliamentary Under-Secretaries
of State.
 Legally all power is given to Secretaries of State, not to the PM. So in practice it is
very easy for the executive to fragment in different directions. As I’ve already noted,

2
A list of government departments can be found here: https://www.gov.uk/government/organisations

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 the PM in fact has very few legal powers. His core sources of power are political
rather than legal.

Ministerial responsibility
 Collective cabinet responsibility: a legalised form of ‘united we stand, divided we fall’.
The convention in essence states that once Cabinet has decided on a direction, all
members should follow the decision. They should not publicly dissent from it,
regardless of what they thought of it privately. This is vital to ensure unified
government. It also means that what is said in cabinet, stays in cabinet—cabinet
minutes are secret.
 Individual ministerial responsibility is the idea that each minister is responsible to
Parliament for what happens within his or her department. This is really the corollary
of being legally in charge of a big dept. They are expected to report back to
Parliament. But it also means that civil servants are expected to be loyal to their
minister. Because ministers are responsible to Parliament, civil servants should follow
their minister.
 Both these are constitutional conventions, practices which are now obligatory—but
are usually not written down. They are vital to the running of executive government.

The Administrative Executive

 The number of functions the executive must carry out are enormous, and these
cannot be feasibly done by ministers. Instead, they rely on the ‘administrative
executive’. It is the administrative executive who in practice carries out the business
of government, or the executive, on a day to day basis.

The Civil Service

 Civil servants are those officials who carry out the ‘orders’ of ministers. They are
often referred to as ‘servants of the Crown’—servants of the state. They are
permanent—not in the sense that they cannot be fired—but rather, they don’t leave
every time there is an election. Civil servants stay regardless of who is in
‘government’. They are appointed on merit, and are expected to be politically
impartial. They serve whoever is in government.
 The numbers of civil servants are enormous. But they have been dropping since the
Coalition—that means, frankly, the state—or more specifically, the executive, is
weaker. But numbers have been rising again as a result of Brexit: the British state
needs more officials in order to deal with the consequences of Brexit.
 Civil servants are to be found in departments and agencies. Each dept has a subject
area: defence, foreign affairs, treasury, business, Brexit and so on. 3 Some are
massive, and some are very small. The PM’s office in No 10 is a subset of the Cabinet
Office. So the PM has 3% of the workforce that DWP has. So you can see that in fact
the PM is quite weak compared to some of the big Whitehall depts.
 Perhaps more importantly for our purposes, it is civil servants who in practice usually
implement the work of government. For instance, if a Secretary of State is required
by statute to remove illegal immigrants from the UK, in practice this will be
implemented by civil servants.

3
A list of government departments can be found here: https://www.gov.uk/government/organisations

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Other tiers of government
 Finally, as UK Con has noted: ‘The most important executive institution is the UK
Government, headed by the Prime Minister, but there are also devolved
governments for Scotland, Wales and Northern Ireland, as well as local authorities
(local councils), which perform executive functions for particular localities
throughout the UK. What the UK/devolved governments and local authorities have
in common is that they are elected bodies – indirectly, via their respective
parliaments, in the case of the UK and devolved governments, and directly, in the
case of local authorities. They therefore operate in accordance with the political
priorities of ministers or councillors (to the extent permitted by their legal powers).’
It is worth noting that almost all these bodies or tiers of government have a
statutory basis. In any case, for the purposes of our module, you are primarily going
to be looking at the UK executive and local government.

Sources of executive power

 Remember what the primary function of the executive is: it is to govern. This
requires that the executive have competent powers to do so. In this sense, they
enable the executive. But under the rule of law, the executive can only act if there is
a legal basis on which they can do so—indeed, this is the core basis on which courts
supervise the exercise of executive or public power. So we can see these sources
both constrain and enable the executive.
 Statute: the executive normally works through primary and secondary legislation—
that is, statutes, and delegated legislation. This is the main source of executive
power. In essence, Parliament grants power to the executive via statute. In theory,
this should be a set of narrow powers; in practice it is often quite broad. Indeed, in
practice, parliamentary sovereignty often amounts to executive sovereignty—the
executive initiates most legislation—although Parliament can still amend it.
Moreover, Parliament delegates a lot of law-making power to the executive: the
executive passes thousands of statutory instruments per year.
 The prerogative: the so-called ‘residual’ power of the Crown. It’s talked about a lot in
Miller. But it is not really residual. It covers everything from the power of foreign
affairs, and relationships between states; to the use of emergency power; to matters
like passports. It should not be understood as residual at all but a power of necessity.
 The common law: the executive is also understood as a legal person, and therefore
can do anything that an individual can do under the common law, such as enter into
contract with others.
 Constitutional conventions: these are really various practices now seen as obligatory
—mean that power has shifted to the political executive rather than other bodies. So,
for instance, it is ministers who make state decisions, not the monarch. In practice, it
is the PM who chooses ministers, not the monarch.
 ‘Non legal power’: this is the power to influence—in Parliament, in public, via
publicity; through the funding from the public purse. The executive has massive,
massive power. Of course, much of its power comes from the fact that it has a
majority in the HOC. So much so that parliamentary sovereignty often seems at times

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 to be executive sovereignty. The executive can draw on the civil service, a massive
workforce. Finally, the executive is powerful because the other branches are weak.

Red light theory and green light theory

 Carol Harlow and Richard Rawlings suggest there are at least two ways of
understanding administrative law. The first is red light theory; the second is green
light theory. Behind both lie a theory of the state; both can help us understand a
deep tension in administrative law and judicial review—between constraint and
empowerment.

Red light theory

 Red light theory: primary purpose of administrative law is to restrain the state. Fears
of expanded state: ‘inroads into private property rights and individual freedoms and
called for the protection of the law’ (Harlow and Rawlings, 32).
 Red light theorists: administrative law exists to control state power and protect
individual liberties. The focus is on the courts, and strong judicial control of executive
power. Law, then, is a policeman: it can say ‘stop’—hence, ‘red light’ theory.

Green light theory

 green light theorists: enable the state to benefit the collective good. Facilitate state
intervention.
 Indeed for green light theorists, courts are seen as obstacles for progress. By
contrast, the executive or state is seen as expressions of democratic will.
Administrative law, on this view is less about constraining the state but rather
encouraging good administrative practice, and to enhance collective liberty.
 Finally, green light theorists prefer democratic or political forms of accountability
(like ministerial responsibility) to legal forms of accountability.

Independent Administrative Law Review

Aims:
• Chapter 1: deals with the possibility of a statutory codification both of jurisdiction in
judicial review and of the grounds for review
• Chapter 2: deals with the question of justiciability and nonjusticiability and the
possibility of drawing a clear boundary between the two.
• Chapter 3: whether the effect of the law on judicial review on the exercise of public
power can and should be moderated (a) by tailoring the grounds of review that can
be invoked to set aside the exercise of a particular public power, and (b) by altering
the remedies that are available in the event of a successful application for judicial
review.

Conclusions:
(a) General codification is an option but the advantages of this are comfortably
outweighed by the disadvantages (Chapter 1).
(b) Parliament could legislate to reverse particular court decisions if there were a strong
case for doing so (Chapters 2 and 3).

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 (c) Parliament could legislate more widely to set out in statutory form what is non-
justiciable and/or the circumstances in which the courts should defer or exercise
restraint. We do not recommend this course (Chapters 1 and 2).
(d) Parliament could legislate to specify the grounds for judicial review. We do not
recommend this course (Chapters 1 and 2).
(e) Parliament could not exclude judicial review generally. This would be contrary to the
rule of law.
(f) Parliament could oust or limit the jurisdiction of the courts in particular circumstances
if there is sufficient justification for doing so. It would have to confront “hostility” from
the courts, careful parliamentary scrutiny and rule of law arguments (Chapter 2).

Conclusion
 The executive is the largest, most complex, and most powerful part of the state. It
appears very strong—in terms of the kinds of power it has, and the scope of the
power it has. But in many respects it is quite weak, because it is huge and
fragmented, and faces highly complex issues.
 There is a tension in administrative law, or judicial review, which stems from how we
understand the state. We have seen this in red light and green light theories. Red
light theorists see the state as dangerous, and as something to be kept in check;
green light theorists see the state not as a necessary evil but something we should be
grateful for. This in turn shapes how they see administrative law and judicial review.
Red light theorists tend see law as above and superior to politics; green light
theorists do not. In different terms, red light theorists are more likely to view the
purpose of administrative law to be to constrain the state; whereas green light
theorists are more likely to be ambivalent about the appropriate role of the courts.