The Reformation of English Administrative Law? 'Rights', Rhetoric and Reality

Abstract

This article examines and responds to a doctrinal claim, made by an increasing number of commentators, that English administrative law is in the midst of a "reformation" or "reinvention", with the notion of "rights" at the heart of this radical recalibration. The article is critical of such claims on several grounds. First, these claims are steeped in ambiguity, such that the nature and doctrinal scope of the claimed metamorphosis are not clear. Second, these commentators have not undertaken the sort of detailed doctrinal analysis which is required to make credible claims about the development of the law, meaning their broad claims have a strong propensity to mislead, and pass over the nuances and complexities of doctrine. An analysis of significant features of doctrine tends to tell against a wholesale recalibration of administrative law around rights, and indicates an increasingly pluralistic rather than unitary legal order. Third, despite the centrality of the idea of "rights" to their claims, these commentators do not squarely address what they mean by "rights", in general using the term indiscriminately, and thereby plunging their claims into uncertainty. The article demonstrates the importance of conceptual clarity in analyzing "rights"-based developments through a doctrinal analysis of "rights" in administrative law, conducted through the prism of W.N. Hohfeld's analytical scheme.

Keywords: Administrative Law, Judicial Review, Human Rights Act 1998, Principle of Legality, Anxious Scrutiny, Proportionality, Wednesbury, Public Duties, Rights, Hohfeld

JEL Classification: K1, K4, K19, K23, K39