PUBLIC LAW
| Published date | 01 March 1995 |
| DOI | http://doi.org/10.1111/j.1467-9299.1995.tb00816.x |
| Date | 01 March 1995 |
| Author | GAVIN DREWRY |
PUBLIC
LAW
GAVIN
DREWRY
Traditionally, both the academic study and the practice of UK public administration have
drawn very little inspiration from the discipline of public law. In contrast to most other
European countries, in which public services are subject to extensive administrative-legal
codes, and in which administrative disputes fall under the jurisdiction of separate and
specialized administrative courts,
UK
administrative law remains
-
recent reforms not-
withstanding
-
significantly undeveloped. There is a marked contrast also with the United
States, where the founding scholars of the discipline
of
public administration saw it as
being firmly rooted in public law. There is no codified British constitution and no
counterpart
of
the US Supreme Court; and there is no British counterpart of the US
Administrative Procedure Act
1946.
However, there are three factors which underline the
urgent need in the
UK
for greater collaboration and convergence between the disciplines
of public law and public administration: first, the accumulation in recent years of a
substantial body of research-based, academic literature on public law, which provides
important insights into the changing landscape of UK public administration; secondly, the
continuing development of machinery for the redress
of
citizens’ grievances against the
state
-
in particular, the substantial growth of judicial review proceedings and the
development of ombudsman systems; thirdly,
the
continuing transformation of the
agenda of
UK
law and politics by developments in the European Union.
We need to remember that law is more than a technique by which adminis-
trators implement their policies and more, too, than machinery for the redress
of grievances. Law is the central core of the administrative process (Carol
Harlow
1981).
Not the least of our difficulties today is the fact that lawyers and administra-
tors have ceased
to
talk the same language (Mitchell
1967).
Recent events have
given
the courts in Britain unaccustomed prominence in
the conduct
of
government and politics. Judicial review proceedings against
Michael Heseltine compounded the government’s embarrassments
in
the
1992-93
pit
closures controversy. Opponents
of
the Maastricht Treaty sought
unsuccessfully to invoke judicial review in the context
of
the protracted
parlia-
mentary
proceedings
on
ratification
of
the
in
1993.
The
Lord
Gavin
Drewry
is
Professor
of Public Administration and Head of the Department
of
Social Policy and
Social Science, Royal Holloway and Bedford New College, University
of
London.
~~
Public Administration Vol.
73
Spring 1995
(41-57)
0
Basil Blackwell Ltd. 1995,108 Cowley Road, Oxford
OX4
lJF,
UK
and
238
Main Street, Cambridge,
MA
02142,
USA.
42
GAVIN
DREWRY
Chancellor has been challenged (unsuccessfully) in his own courts by the Law
Society, over legal aid funding. At the end of 1992, the Home Secretary was held
to be in contempt of court for breaching a court order in a deportation case. The
criminal courts were the scene of government embarrassment in the Matrix
Churchill trial
-
and a judge, Lord Justice
Scott,
is conducting an inquiry into
that episode at the time of writing.
Such headline-hitting
causes
cdlebres
are not typical of public law proceedings,
most of which are far more mundane; but hardly a day goes by without the
quality newspapers carrying a report of one or more cases in which a govern-
ment body has been challenged in the courts (sometimes by an individual
citizen, sometimes by
a
private organization, sometimes by another public
body). This trend has been compounded by the growing number
of
cases
involving, or potentially relevant to, the UK government, that
go
to the Euro-
pean Court of Justice or to the European Court of Human Rights.
Such headlines apart, public law has
always
been an essential element of
public administration. Whether or not one subscribes to Weberian orthodoxy
about the inherently rational-legal basis of bureaucratic organization, law in its
many and diverse manifestations
-
for example, legal constraints and entitle-
ments; a presumed respect by public servants for ’legality’ and ‘due process’;
provision of adjudicative and investigative procedures for dispute resolution;
consistency of practice and the following of precedent
-
is self-evidently a core
element in any developed public administration system, particularly in a polity
that regularly reaffirms its commitment to the rule
of
law. Law in various shapes
and forms is the medium through which much public policy is delivered.
Statutory bodies, including local authorities, operate under a strict
ulfra
vires
rule, policed by auditors and courts. Law is
a
public service
-
like public health
or welfare
-
and, as the legal professions have often recently been reminded, by
Lord Chancellor Mackay
(see
Browne-Wilkinson 1988; Drewry 1992c), an in-
creasingly costly one, and subject to Treasury discipline. Surely, therefore law
must be, equally self-evidently, a key item in the systematic academic study
of
public administration?
But ’is’ does not follow automatically from ’surely’, ’must be’ and ’self-
evidently’. In Britain (in contrast to the rest of Europe: Sisson 1959; Ridley 1984;
Hill 1985) there
is
no separate administrative law jurisdiction
-
though this
categorical statement needs partly to be qualified with reference to the recent
development of a separate Crown Office List in the Queen’s Bench Divisional
Court (see below). Administrative law remains a semi-detached extension of
private law; most public administration in Britain is not conducted with refer-
ence to detailed administrative codes; the British version of public bureaucracy
is not characterized by a legalistic culture; few of the key actors in public
administration have professional legal backgrounds or any formal training in
law. Neither practitioners nor students of UK public administration are accus-
tomed to discoursing in the language of public law. Changing circumstances
-
including an increasing incidence of judicial review and increasing exposure to
the institutions and processes
of
the European Community
-
are only beginning
to make any impact upon this division of interests and expertise.
0
Basil
Blackwell
Ltd.
1995
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