Six Dimensions of Public Law

This chapter draws on the six dimensions of public law covered in the book: theory, institutions and accountability, constitutions and rights, process and procedure, legislation, and case law. It links discussion of these dimensions, by considering how they have been affected by Brexit. The chapter is not concerned with the contending arguments for leaving or remaining in the European Union. The focus is on the way in which Brexit has ‘pressure-tested’ the public law regime in the United Kingdom and the European Union. The six dimensions of public law that are discussed in the preceding chapters form the architectural frame through which the impact of Brexit on the public law regimes is assessed in both the United Kingdom and the European Union.

Proceduralism and Automation

In this chapter, we argue that administrative procedure has become a central organising concept for administrative law. Our first theme is the steady proceduralisation of public administration experienced in recent years, in the framework of a relationship between courts and administration which we present as a two-way, non-hierarchical process. We look first at internal drivers to proceduralisation emanating from administration, notably the managerial reforms of the 1980s and the rise of regulation as a standard governance technique. We then turn to the contemporary case law of judicial review, focussing on the judicial response to, and stimulus for, administrative proceduralism. Our second theme is the idea of procedures as a repository for values and of values as an important, though often subliminal, driver of administrative procedure. We look at the potential for exchange as well as dissonance between public administration and administrative law. Our third theme concerns challenges to administrative law from the technological revolution currently under way. The impact of automation on public administration was at first rather modest; today, however, technology is taking great leaps forward—from computerisation to artificial intelligence and beyond. The innovations have so far been welcomed as beneficial—faster and more consistent administration, swifter and less costly courts and tribunals. It is time to recognise that we are facing a paradigm change, in which key values and procedures of administrative law, such as transparency, accountability, individuation, and due process, will need to be supported and sustained.

Legislating and Adjudicating

The chapter examines the role played by the Court of Justice of the European Union (the CJEU) in ruling authoritatively on the meaning of European Union legislation. The EU legislative process differs from the parliamentary process in the United Kingdom for good reason. Within the European Union, there are many different traditions of how such drafting should be done; whilst, at EU level, multinationalism and multilingualism have a significant impact on what emerges as the final text. The chapter explains the difficulties encountered and gives illustrations from the Court’s case-law of instances where the Court has either decided not to take steps that might be construed as ‘legislating’ or, conversely, has gone to the limits of ‘constructive re-interpretation’. The chapter concludes by asking how far the Court should ‘bend’ a legislative text.

How Judges Make Law

Unlike statute law, case law is not ordinarily made through actions designed to make law. The central purpose of a court is resolution; the court achieves it by giving judgment in a particular case. For judges to make law well, it is enough if they do well at their primary task of giving a ruling in the case. They make law incidentally because of the effect the law gives to their rulings. That feature of case law, along with its open-endedness and revisability, seems to support the view that it is not law at all, or that if it is law, law must be something that springs from the imagination of the judge. This chapter explains why these aspects of judicial law-making accord with the view that case law, like statute law, is a set of rules made valid by their sources in past decisions.

The Authority of the Administration

The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in office, as a means to limit the imposition of the King’s will and to secure the independence of officials, especially the judges. In the eighteenth century, virtue, property, and independence became the basis for office, and the common law sought to enhance such authority through notions of public trust. After the nineteenth-century transition to more centralised and bureaucratic hierarchy, democracy became the new source of authority for the administration, reinforced by the ultra vires doctrine. In each era, the authority claims of the administration have been reflected in the frameworks for judicial supervision. In this way the common law has simultaneously constituted and controlled authority. In the present day we are in the process of rethinking whence administrators derive their legitimate authority and the theoretical foundations of judicial review. Beginning with the authority claims of the administration and framing a juridical response which reflects and tests such claims would be a good place to start.

The Administrative State and the Fundamentals of Public Law

This chapter uses recent developments in the UK National Health Service (NHS) as a case study to illustrate the importance of the courts’ role in upholding the principle of legality. The Health and Social Care Act 2012 was a controversial piece of legislation which sought to ensure that the day-to-day running of the NHS would be underpinned by a competitive market. Since the Act was passed, this policy has fallen out of favour, and ministers have pursued a new policy of ‘integrated care’, in which different NHS organisations are encouraged to work together rather than to compete. In the Hutchinson and Shepherd cases, the courts have held that it is intra vires the 2012 Act to pursue integrated care, even though it is arguably the exact opposite of a competitive market. This chapter offers a critical analysis of these cases and emphasises the importance of the administrative law principle of legality in upholding democratic government.

The EU Automated State Disassembled

The use of automated personal information collection systems by states has gradually succeeded more traditional and ad hoc ways of collecting, storing, and processing information. At the same time, interoperability as a system of relations between different state authorities at different governance levels in the European Union and involving data collected for different purposes cumulates and exacerbates problems of accountability and transparency. This chapter goes beyond a discussion of how accountability has evolved for certain distinct institutions and actors, such as, for example, Europol, to highlight the fuzziness and disconnection with accountability mechanisms that result from the collection, sharing, and use of shared data both at the European level and at the joined-up national level. Shoehorning interoperable databases into existing forms of individual legal protection is unlikely to provide a satisfactory and permanent solution. In making visible the missing link between information and existing accountability forums, a conversation can hopefully begin among public lawyers on how to link information provision within the contours of more assembled accountability structures in the future.

The Foundations of the Duty to Give Reasons and a Normative Reconstruction

Despite operating in highly constrained legal environments, executive actors may act in a constitutive capacity. This observation prompts a critical assessment of the role of procedural principles in EU administrative law. As norms of conduct deployed by executive bodies during the process of implementing norms, procedural principles may have legal dimensions that, while constitutionally relevant, may not come to the fore in judicial review. The chapter develops this argument with regard to the multifaceted character of the duty to give reasons. It argues that the duty to give reasons ought to ensure the constitutional embeddedness of the constitutive action of EU executive bodies. Such role is consistent both with the original relevance of the duty to give reasons to the law of integration (in the context of the European Coal and Steel Community) and with the current EU constitutional framework. The latter justifies reinstituting the original constitutional function of the duty to give reasons, irrespective of its current scope in the context of judicial review.

Law, Democracy, and the Absent Legislator

This chapter comments on the chapters by Eleanor Sharpston and Jeff King, arguing that in different ways they illustrate responses to an underlying problem, when the legislator is not available and on hand to resolve uncertainties or to provide new normative content to address issues which arise. The more absent the legislator, the more courts may feel they have to be active in generating normative content themselves. This is a perspective which helps explain the activity of the Court of Justice of the European Union. The more absent the legislator, the more a legal system has to provide for forms of delegated legislation. This perspective may be relevant in assessing legislative responses to Brexit.

Foundations and Futures

This introductory chapter provides an overview of a collection of essays exploring the foundations and future of UK and EU public law. The collection of chapters in this book is inspired by the work of Professor Paul Craig, University of Oxford. It explores six thematic building blocks of public law: theory, case law, legislation, institutions, process, and constitutions. This chapter provides an introduction to each of these foundations and comments on the questions and issues raised by the distinguished group of jurists gathered in the volume as they reflect on the nature and future directions of public law.