1 - UK administrative law: foundations

Summary

1 Introduction

This chapter explores the foundations of administrative law in the UK. It advances a model of common law constitutionalism that is more moderate than that presented by some other writers, but which best captures the historical provenance of the subject, is consonant with constitutional principle and coheres with legal practice. The argument proceeds in the following stages.

It begins with discussion of how administrative law evolved, which is analysed from three related perspectives, conceptual, judicial and administrative. The conceptual strand considers the different levels at which doctrine develops and the values that inform this. There is then consideration of the evolution of administrative law from a judicial perspective, through the principal case law developments in the seventeenth, eighteenth and nineteenth centuries. The focus then shifts to the administrative perspective, in order to understand the nature of administration, the powers wielded and the types of body that commonly came before the courts on judicial review.

This is followed by analysis of the relationship between theory, values and fact within public law discourse. Contestation as to the theoretical underpinnings of administrative law is inevitable, although no more or less than analogous debates that prevail in private law as to the normative foundations of contract, tort, property or restitution. In the public law realm the contestation will often reflect, at one stage removed, assumptions drawn from different political and legal theories, since the former will provide insight as to matters such as the nature of rights, conceptions of justice, the relationship between justice and other virtues, and the extent to which the state should seek to prescribe behaviour for its citizens, while the latter will furnish guidance as to the role of the courts when adjudicating on such issues. There are important general issues concerning the relationship between theory, value and fact, which are considered within this part of the chapter. While different perspectives on the values that underpin public law are inevitable this still leaves open whether there are fundamental binary divides that might provide the key to such differences. It has been argued that the distinctions between normativism and functionalism, and between the internal and external perspective, perform this role, and these claims are subjected to critical scrutiny.