PUBLIC LAWYERS AND PUBLIC ADMINISTRATORS: PROSPECTS FOR AN ALLIANCE?
| Author | GAVIN DREWRY |
| Date | 01 June 1986 |
| Published date | 01 June 1986 |
| DOI | http://doi.org/10.1111/j.1467-9299.1986.tb00614.x |
PUBLIC LAWYERS AND PUBLIC ADMINISTRATORS:
PROSPECTS FOR AN ALLIANCE?
-
GAVIN
DREWRY
There is in Britain a longstanding
gulf
between the study and practice
of
public administration
on the one hand, and the study and practice of public law on the other.
This
state of affairs
contrasts sharply with the situation in many other countries
of
Western Europe, where public
administration is underpinned by well-developed systems of administrative law. Recent
procedural and substantive developments in the field
of
judicial review
of
administrative
action, together with intensification
of
debate about constitutional issues, such as the
desirability of enacting a new Bill of Rights, have increased the urgency of improving com-
munications and collaboration between these two cognate areas of activity. The burgeoning
literature of public law, and the law reports of cases in this subject-area, constitute a
potentially invaluable
quarry
of
source-material for students of British public administration.
Twenty years ago, the late Professor
J.
D.
B.
Mitchell was stressing the need for
a fully-fledged system
of
administrative law in Britain at a time when 'ombudsmen'
solutions
to
problems of redress of grievances against the administration were
fashionable.
In
that context, he lamented that: 'not the least of
our
difficulties today
is the fact that lawyers and administrators have ceased to talk the same language'
(Mitchell, 1967). Much the same sentiment was expressed by Louis Blom-Cooper
QC
in 1984, in a public lecture entitled: 'Lawyers and Public Administrators:
Separate and Unequal' (Blom-Cooper, 1984),
in
which he argued persuasively for
the development of a better understanding between lawyers in private practice and
those employed in the public sector, particularly in Whitehall.
The present writer (Drewry, 1978) is just one
of
a number of academics who
have, over the years, lamented the gulf that exists between public law and public
administration
-
reflected in yawning gaps in public administration syllabuses and
in the research-based
and
textbook literature
of
the subject, in the paucity of
collaboration between public administration academics (based for the most part
in departments of political science) and public lawyers, and in the low priority
accorded to law in the training of administrators (Steel, 1979).
Gavin Drewry is Reader in Social Administration, Royal Holloway and Bedford New College,
University
of
London.
This
article was intended originally to be
an
updated version of a paper published
in 1978 in the
Public
Administration
Bulletin
(No.
27, pp. 2-19). However,
so
much has happened
to the subject in the last eight years that only a few paragraphs
of
the earlier version have survived
the process
of
revision.
Public Administration
Vol.
64
Summer 1986 (173-188)
0
1986 Royal Institute of Public Administration
ISSN
0033-3298 $3.00
174
GAVIN
DREWRY
The evidence (admittedly, by
its
very nature, negative in character) for the
continuing existence of such a gulf is
all
around
us.
It
is,
for instance, surely
sigruficmt that the first edition
of
a deservedly successfd textbook on British public
administration, published as recently as 1984, devotes
just
one of its
288
pages
to the courts, in a chapter
on
'Public Administration and Redress' (Greenwood
and Wilson, 1984, chapter 14). Howevqr, it
is
only fair
to
point out, lest the authors
of
this book feel that they are being unfairly picked on, that the absence
of
public
law ingredients in the mainstream of literature on British public administration
is endemic.
The contrast
in
this respect between Britain and both the continent of Europe
and the United States could hardly be sharper. The continental administrator is
in general, as
C.
H.
Sisson pointed out, 'a lawyer, specializing in that branch of
law
-
namely administrative law
-
which is most concerned with the functions
of government' (Sisson, 1959, p. 39). And, across the Atlantic, we find that
'constitutional issues permeate American law and life to
an
extent that foreign
observers find incredible. Americans have become a people of constitutionzlists
who substitute litigation for legislation and see constitutional questions lurking in
every case' (Schwartz and Wade, 1972,
p.
6).
There are several administrative law
textbooks written by teachers
of
public administration for American students, but
no real British equivalents (Clark, 1985, note 4).
F. F.
Ridley, examining 'British approaches to the redress
of
grievances', notes
that 'the idea of "political" rather than 'legal" protection of citizens against adminis-
tration is deeply embedded in British political traditions and has imprinted itself
on British ways of thought' (Ridley, 1984, p.
4).
It would be
out
of the question
for any writer on French
or
West German public administration to tackle the subject
without extensive reference to administrative and constitutional law. It would be
inconceivable for any textbook on United States government to ignore the role
of the Supreme Court. British political scientists show very little interest in the
judges and the research-based literature on judicial behaviour in Britain is almost
non-existent (Baumi, 1977; Drewry 1984).
The present article puts forward the proposition that there is in Britain an
unfortunate gulf between the study and practice of public law and the study
and
practice
of
public administration. Indeed, more accurately, there are several inter-
connected gulfs
-
between different but intrinsically related fields
of
academic
activity, between the academic study
of
public law, broadly defined, and the
training and practices
of
administrators, and between specialist lawyer-bureaucrats
and their generalist counterparts. It considers (mainly in relation to the first aspect)
what bridges have been or are in the process of being built,
and
whether recent
and continuing developments have made the building of such bridges
a
matter
of
greater urgency.
SOME
DEFINITIONAL
PRQBLEMS
It
should be noted from the outset that the term 'public law'
is
surrounded by
a fog of definitional uncertainty. British textbooks on public law include discussion
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