Law and Administration

Citation

Harlow, C., & Rawlings, R. (2021). Law and Administration (4th ed.). Cambridge University Press. Law in Context series.

Chapter Summary

The fourth edition has nineteen chapters and runs to about 880 pages. The Preface says that the book, first published in 1984, is "written by lawyers and largely for lawyers" but was always meant to be about the relationship of administrative law with government and the role of law in the administrative process, not only about case law. The authors call themselves functionalists, treat rule-making and "soft law" as central, and use extended case studies throughout.

Chapters 1–3: The State, the Mindset and Change

Chapter 1, The State and Administrative Law, sets out the book's approach and reviews the Diceyan heritage, the shrinking of the royal prerogative, the green-light theory presented as a new approach, and the extended state. Chapter 2, Changing the Mindset, covers public service management, the risks to public law, a "third way", good governance values, juridification and the rule of law, and populism. Chapter 3, State of Change, looks at global shocks, the territorial dimension, the European Union epoch, Brexit and reregulation, and contemporary process and procedure.

Chapters 4–7: Judicial Review, Law-Making, Discretion and Information

Chapter 4, Transforming Judicial Review, follows the rebuilding of judicial review through the model of rationality, rights-based review, proportionality and unreasonableness, and the idea of a growing constitutional court. Chapter 5, Making the Law, deals with evidence-based legislation, parliamentary scrutiny including the Joint Committee on Human Rights, secondary legislation, and judicial deference to parliamentary process. Chapter 6, Discretion and Rules, considers soft law, structuring discretion, the Immigration Rules and robotic decision-making. Chapter 7, The Information State, covers freedom of information, the Information Commissioner, data protection and privacy, and surveillance and the interception of communications as a case study.

Chapters 8–9: Regulation

Chapter 8, A Regulatory Laboratory, discusses regulation and governance and the two phases of "better regulation". Chapter 9, Regulatory Look: Agency Development and Accountability, examines the agency model, a case study of economic regulation and climate change, and accountability.

Chapters 10–11: Contract

Chapter 10, Contractual Revolution, classifies government contracting, traces old and new forms, and covers contract-making in the era of Europeanisation and Brexit and the judicial connections to contract. Chapter 11, Contract, Contract, Contract, takes the private finance initiative, the franchising of the National Lottery, and the "contracting" of the individual as case studies.

Chapters 12–15: Liability, Complaints, Tribunals and Inquiries

Chapter 12, 'Golden Handshakes': Liability and Compensation, examines government liability in tort, human rights damages, criminal injuries compensation and the Windrush scandal. Chapter 13, Growing a Complaints Service, discusses administrative justice, internal review and the ombudsmen. Chapter 14, Tribunals and Administrative Justice, traces tribunals from court-substitutes to the restructured tribunal system and the move online. Chapter 15, The Public Inquiry: Investigation and Accountability, covers planning inquiries, coroners' inquests, inquiries and human rights, and the Hillsborough campaign.

Chapters 16–19: Review in Practice

Chapter 16, Procedural Review in Question, asks about the rationales of procedural review, fairness and its tailoring, and fairness and risk. Chapter 17, Testing Ground: Legality, Process and Substance, considers judicial power and executive law-making and the relation of law, policy and administrative process. Chapter 18, Litigation: Equalities Focus, takes discrimination law, the public sector equality duty, direct and indirect discrimination and Article 14. Chapter 19, Judicial Review Process and Impact, models judicial review and looks at the evidence base, the search for impact, and efforts to clamp down on judicial review.

Key Concepts

Chapters 1–3: Context

• Green-light theory: the theoretical approach to administrative law that Chapter 1 puts forward as a new one.
• Diceyan heritage: the inherited Diceyan framework of British public law that Chapter 1 examines.
• Good governance values: standards for public administration set out in Chapter 2.

Chapters 4–7: Review, Law-Making and Information

• Rationality, proportionality and rights-based review: the grounds on which courts scrutinise public decisions.
• Soft law: guidance and other non-binding rules that structure administrative behaviour.
• Robotic decision-making: administrative decisions delegated to algorithms.

Chapters 8–15: Governance Beyond the Courts

• Better regulation: the government regulatory reform programme discussed in two phases in Chapter 8.
• Regulatory agency: the model of decentred regulators and the question of their accountability.
• Contractual governance: government by contract, including the private finance initiative.
• Administrative justice: the complaints, ombudsman and tribunal system alongside the courts.

Chapters 16–19: Review in Practice

• Public sector equality duty: the duty on public authorities to have regard to equality.
• Procedural fairness: the rationales for and tailoring of fair procedure.

Critical Analysis

Strengths

• A broad conception of the subject. Judicial review is covered in full, but the book also covers regulation, contracts, liability, ombudsmen, tribunals and inquiries, which many courses treat separately or not at all.
• Case studies. The Preface identifies extended case studies, such as those on social security, immigration rules and planning in the first edition and on regulatory agencies and government contracting in this one, as the way the authors tie law to its administrative and political context.
• Reception. For earlier editions, the publisher quotes Thomas Poole of the London School of Economics on the interweaving of theory, doctrine and case studies, and the Edinburgh Law Review on a book at the core of the "law in context" enterprise.
• Currency. The Preface presents this edition as written in the shadow of Brexit and the pandemic and the book gives space to Brexit, Windrush, automated decision-making and online tribunals.

Limitations

• Not a first course. The Preface describes a book for lawyers; much of it presupposes knowledge of the constitution, courts and public law. Students who have not met the basics will need a primer.
• Length and range. At about 880 pages across nineteen chapters it is a large book. The publisher's description of an earlier edition says that the subject can challenge even the more advanced student.
• Focused on the UK. The book is concerned with British administrative law and its European setting.
• Moving target. Some chapters deal with contested and fast-changing areas, such as Brexit and reregulation, so details need checking against current sources.

Where It Fits in the Course

Within this course list, Harlow and Rawlings is a contextual administrative law text that sits between introductory public law books and specialised monographs. Bradley and others' Constitutional and Administrative Law and Le Sueur and others' Public Law: Text, Cases and Materials cover the whole of public law and are the better starting point for the constitution and the institutions of government; Loughlin's The British Constitution: A Very Short Introduction and Bingham's The Rule of Law are short orientations.

After this book, Hickman's Public Law after the Human Rights Act treats judicial review, proportionality and deference in more depth, and Loughlin's The Idea of Public Law addresses the theoretical foundations of the subject. Harlow and Rawlings fits best in the middle: it assumes the basics and adds the governmental and regulatory context.

How to Use This Book

The book is for law students on an administrative law or public law module, and for those with an interest in how government works in practice. A grounding in the constitution, the courts and the Human Rights Act is assumed.

A suggested route:

• Core: Chapter 1 for the framework; Chapters 4 and 16 to 19 for judicial review; Chapter 6 for discretion and rules.
• Wider governance: Chapters 8 to 11 on regulation and contract; Chapters 12 to 15 on liability, complaints, tribunals and inquiries; choose the ones that match the syllabus.
• Topical: Chapters 2, 3 and 7, on governance values, Brexit and the information state, for context and for essay topics.

Read the case studies in full, because the argument is built through them, and use the tables of cases and statutes at the front to trace primary sources. As the edition was completed during the Covid-19 pandemic, check the current position on the topics that were still changing.