[Editor’s Note: This is the first entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]
–Hasan Dindjer, University of Oxford
Decisions by public authorities are often thought to possess a democratic imprimatur which properly insulates them from certain kinds of interference by courts. Executive and administrative agencies are frequently thought of, along with the legislature, as an elected or political branch of government. Courts justify deference to them on the grounds that they ‘bear democratic responsibility for […] decisions’ or that ‘in a democracy a person charged with making [certain] assessments […] should be politically responsible for them.’
In the paper on which this piece is based, I ask what kind of democratic imprimatur administrative decision-makers in fact possess, and what implications this might have for courts.
The democratic credentials of the administrative state are not, of course, a new topic. My discussion is limited to one theoretically significant but relatively neglected aspect of it. I consider a strong sceptical thesis about substantive judicial review of administrative agencies, parallel to that levelled by critics such as Jeremy Waldron and Richard Bellamy against judicial review of primary legislation. These judicial review sceptics hold—roughly—that it is illegitimate, because undemocratic, for judges to strike down legislation on rights grounds. The same scepticism is much less commonly directed at judicial review of administrative action. But as Jeff King has noted, it is not obvious why that should be so, at least in Westminster systems, where many heads of agencies are drawn from the elected government.
I argue that, even granting for the sake of argument that scepticism about judicial review of legislation is warranted, an analogous scepticism about administrative law does not follow—at least for the most part. In this short piece, I sketch an outline of that argument. The paper considers substantive judicial review (such as on human rights or reasonableness grounds) of discretionary administrative action, and focuses on central government departments in Westminster systems. The argument applies a fortiori to some other decision-makers, but less straightforwardly in other cases.
Public agencies can be more or less democratic. A public decision-maker (or decision) is democratically pre-emptive if, because of its democratic status, it would be illegitimate for another body, such as a court, to overrule it. There is a simple prima facie argument against the democratic pre-emptiveness of administrative decisions. Questions which fall within an agency’s discretion are those which Parliament has not settled. If an agency has discretion whether to choose option A, B, or C, then Parliament has not settled which of A, B, or C is to be done. The choice must be made via procedures internal to the administrative body, which are not themselves democratic: public authorities do not generally contain mini-legislatures, and public consultations, whilst often valuable, offer nothing like a binding, equally weighted voting procedure for those affected. Since a plausible necessary condition of a decision’s being democratically pre-emptive is that it was made democratically (the procedural premise), an agency’s choice of A, B, or C does not appear democratically pre-emptive.
One response to this argument denies the procedural premise and insists that a decision is democratically pre-emptive when it has been authorised democratically. Where Parliament delegates a decision to an agency, it exercises a normative power to entrust the decision to them. Yet less follows from this than might be supposed. In so far as Parliament’s own decisions are democratically pre-emptive, that is in virtue of certain institutional facts about Parliament, such as its composition, decision-procedures, and deliberative features. When it delegates a decision, it does not, and could not, thereby convey these institutional features onto the administrative body.
A second response, which also denies the procedural premise, holds that democratic accountability suffices for democratic pre-emptiveness. I argue this proposal can succeed only if it demonstrates that administrative decisions pass a threshold of democratic sensitivity. This requires that their content be substantially responsive to the collective preferences or intentions that the relevant constituency holds or would hold on the issues to be decided. The paper considers various finer points here, including whose preferences—voters or legislators?—count. The basic idea, however, is simple. Whilst the administrative state may be sufficiently responsive to democratic preferences to be morally acceptable in general, it is not so democratically responsive as to therefore be properly insulated from judicial review. Neither periodic elections nor parliamentary or cabinet scrutiny come close to ensuring that any given administrative policy or decision reflects democratic preferences.
Finally, it might be suggested that substantive judicial review intrudes on a democratically pre-emptive decision, not of the agency, but of Parliament itself. The idea is that among Parliament’s decisions is this one: that the agency should have the discretion whether to pursue A, B, or C. So where a court prevents the agency from pursuing such an option, the argument goes, it disregards the permission (and perhaps power) Parliament enacted. I argue, however, that on no plausible account of legislative authorisations do they confer all-things-considered permissions of this kind; statutory discretions are always subject to the background rules of public and private law. Although administrative decisions are—at least typically—not democratically pre-emptive, their democratic credentials are still relevant for courts. The more administrative decisions approximate the ideal of democracy, even as they do not fully realise it, the more judicial deference is warranted—all else being equal. This principle is of course just one of several that bears on the right approach to judicial deference. In so far as deference on democratic grounds is relevant, courts ought to take seriously the variability in how democratic different public authorities are. With criteria such as democratic sensitivity in mind, they should ask just how far a challenged decision is responsive to the views and deliberation of the electorate and its representatives.
Suggested Citation: Hasan Dindjer, Showcase–New Directions in Administrative Law Theory: Administrative Law and Democracy, Int’l J. Const. L. Blog, Sept. 10, 2019, at: http://www.iconnectblog.com/2019/09/showcase–new-directions-in-administrative-law-theory:-administrative-law-and-democracy
 Bank Mellat v HM Treasury (No 2)  UKSC 38; AC 700,  (per Lord Reed).
 R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department  UKSC 60;  A.C. 945,  (per Lord Sumption).
 Jeremy Waldron, Law and Disagreement (Clarendon Press 1999); Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346.
 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press 2007).
 But see e.g. Bellamy, Political Constitutionalism, 243-259, which discusses the perceived inadequacies of judicial rights protection in respect of the executive.
 Jeff King, Judging Social Rights (Cambridge University Press 2012) 169.