REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00837.x |
| Published date | 01 March 1985 |
| Date | 01 March 1985 |
REVIEWS
FOREVER AMBER?
LAW
AND
ADMINISTRATION. By
C.
HARLOW
and
R. RAWLINGS.
[London: Weidenfeld and Nicholson.
1984. 718
pp.
21595.1
I
THE
publication
of
Harlow and Rawlings’
Law and Administration
marks a
significant and welcome attempt to free the study
of
administrative law
from the straight-jacket
of
analytical jurisprudence.
To
paraphrase Robson,
the traditional English administrative law textbook has laboured for too
long with “the dead hand
of
Dicey lying frozen over its neck.”’ We do not
find in the pages
of
Law and Administration
an attempt to organise
administrative law into the traditional categories
of
natural justice, error
on the face
of
the record, jurisdiction, control
of
discretionary powers,
standing and the availability of remedies. The authors question the
“traditional lawyerly view of administrative law as machinery for the
control of government and of judicial review as the centrepiece
of
administrative law” (p.348). Their concern is not
so
much with
“administrative law” but with the “administrative process.” This concept is
to be understood in terms
of
four functions: discretion, rule making,
adjudication and rule application. While the “administrative process” is
examined from a variety of angles, a uniform theme informs the book: the
need to assess the suitability
of
internal controls on decision making as
against external controls imposed by the courts.
The authors contend that “the allocation of functions is a central
problem for administrative law” (pxiv). Their approach however is not
to expound or develop an explicit theory
of
their own, but to let theorists
‘Ladvance a variety
of
views in their own words” (p.xxiii). These views,
together with those
of
predominantly legal writers, dominate the rest
of
the book. Hence it must be stressed at the outset that this is neither a
traditional legal textbook which seeks to present a systematic approach to
the subject in hand, nor is it
a
straightforward compilation of cases and
materials.
Law and Administration
can best be described as an inductive
text which dares to leave the well-charted waters
of
the traditional
approach to administrative law, but which does not attempt to develop
fully
an alternative theory of law and administration. In fact it remains
connected to the traditional approach by the lifeline of somewhat familiar
materials and cases. The organisation
of
this material is nonetheless a
novel one, and the material is linked by often extensive analysis on the
part
of
the authors, which asks, but does not necessarily answer, a
multitude
of
fascinating questions.
I1
Law and Administration
takes as its starting point the two dominant
approaches to administrative law, aptly labelled as “red light” and “green
light.” Red light theorists are committed to a balanced constitution in
which executive power,
i.e.
arbitrary power, is kept in check by Parliament
and the courts. This may be described as the “model
of
laws” approach to
W.
Robson,
Justice and Administrative Law
(3rd
ed.,
1951),
p.423.
236
Mar.
19851
REVIEWS
237
administrative law, Green light theorists, represented here by Jennings,
Laski and Robson, advocate the use of law to promote “efficient” rule
making, and are committed to a “model of government” approach to the
administrative process. While the authors state that they do not wish to
take sides in the often acrimonious debate between red light and green
light theorists, the content of the remainder of the book, if not its
orientation, reflects a sceptical green light approach. Attention is directed
to three areas:
(1)
The constitutional role of the courts in the allocation of decision-
making functions and the operation of judicial review in practice
(Chaps.
3,
4,
9, 10,
11
and
12).
(2)
Non-judicial forms of control of administrative action (Chaps.
5,
6,
7,
8,
and
13).
(3)
An analysis of three specific areas of governmental activity in the
form of short functionalist studies of planning (Chaps.
15
and
16),
immigration (Chaps.
16
and
17)
and social security (Chaps.
18
and
We propose to examine the authors’ treatment of the first of these areas,
and in the light of that analysis to go on to assess the remaining two.
While this approach does not follow the sequence of the book, we would
suggest that the chapters listed under heading
(1)
make up the substance
of the traditional concern of administrative lawyers. It is only through an
understanding of Harlow and Rawlings’ treatment of this subject-matter
that we can begin to comprehend the perspective which informs the book
as a whole.
19).
I11
In Chapter
3,
entitled “Adjudication and the Allocation of Functions,” the
authors explore adjudication as a form of decision making and examine its
strategic advantages and disadvantages for both decision-makers and
“litigants” as well as the appropriateness of this form of decision making
for polycentric issues. The chapter draws on empirical studies of the
operation of a number of administrative tribunals in assessing the gains
and pitfalls of adjudication for potential beneficiaries. This serves as a
useful and stimulating introduction to an analysis
of
the courts’ approach
to informal adjudication processes and the concept
of
procedural fairness.
The recent case law on procedural fairness is critically examined and
found wanting in terms of consistency and cohereixe. Judges tend to
waver between analytical and contextual tests in their application of the
rules of natural justice or in their imposition of a duty to act fairly. In
Chapter
4
the authors examine the case law on ouster, jurisdiction and
error of law in the light of the recommendations of the Franks Report and
find once more that the conceptual analyses which inform the void
voidable, law/fact, judicialladministrative antitheses are far from watertight:
“judges, it transpires may play games with rules” (p.115).
This calls into question the place of judicial review in the constitution-
an issue the authors contend is too often ignored in English as opposed to
American literature on administrative law (p.xxiv). The pragmatism of the
judicial approach to natural justice, procedural fairness, error on the face
of the record and jurisdictional error places a question mark over claims
by red light theorists that the courts provide an indispensable and
independent mechanism for controlling the executive. Far from applying a
coherent set of general principles to administrative law cases, judges are
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