[Editor’s Note: This is the sixth entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]
–J.G. Allen, Humboldt University of Berlin Centre for British Studies, University of Tasmania Faculty of Law
The nature and source of non-statutory executive powers has increased in importance in recent decades in many constitutional orders, not least in response to the changing modalities of administration (particularly “contracting out”), risk politics, and emergency.
In the UK and Commonwealth context, the question of non-statutory powers is couched in terms of the capacities of the Crown; in other contexts, it is framed in terms of the State, for which the Crown has (for better or worse) been a stand-in. While the core question is the similar, the UK and Commonwealth context demands a unique, historically-inflected idiom. This makes the debate obscure in certain respects, but in others provides a welcome link to the some of the classical sources in political theory. Prerogative, raison d’Etat, and emergency are never remote.
My view is that we should approach this difficult area of law by first addressing the problem of official action. When we speak of the Crown (or the State) doing anything, what we actually mean is that some individual occupying a certain type of institutionalised social role has done something, in circumstances such that we attribute her actions to the Crown (or the State). In my contribution to this workshop, a chapter in a forthcoming book The Judicial Review of Official Action, I set out why I think this starting point helps to avoid muddled thinking about non-statutory powers.
Specifically, I address the problem of taxonomy—of how non-statutory executive powers should be categorised. I have in mind actions by executive officials unsupported by an express legislative empowerment, but which are not associated with the traditional “high prerogatives” such as making treaties. Think of actions such as signing contracts (presumably as an actor in private law), making gifts, disseminating information, making apologies, or keeping lists. These mundane acts mirror those of ordinary individuals, yet they are vitally important in modern administration and demand proper theorisation. Consider the position of someone placed on a list of suspected terrorists, the victim of a natural disaster denied ex gratia relief, or the recipient of public housing outsourced to a private corporation.
There are two broad approaches in the literature. One says that the Crown or the State can do these sorts of things because it is not prohibited from doing so and has the “residual liberty” to act. This is the view associated with seminal English public lawyers such as HWR Wade, and it is the view implicit in BV Harris’s theory of a “third source” of government authority next to statute and the traditional prerogative. This kind of view invites, and is probably inspired by, Hohfeldian analysis, positing that such “powers” are not “powers” at all. The other view stresses the important fact that such actions are governmental in character, and insists that they are properly seen as “common law powers”. There is support for both views in the UK and Commonwealth cases, but it is fair to say that the question is still “up for grabs”.
An alternative view has recently been presented by Adam Perry. Perry rightly points out that the “residual liberties” approach rests on a tautology (“everything which is not prohibited is permitted”) and a non sequitur (that the Crown is not prohibited from doing X not mean that the Crown has the ability to do X). In Perry’s account, we should divide our subject matter into “common law powers” properly so called and “administrative powers”, which he argues are non-legal.
Perry’s contribution provides some much-needed clarity, but his view also neglects the problem of official action. I argue that it is only subject to rules that the actions of an individual exercising “administrative powers” are attributable to the Crown (or the State). It is only pursuant to rules that my act qua official is an act of the Crown, and not my own act as a private person. In the context of administrative action, these rules are categorically legal. Taking the problem of official action seriously therefore leaves no room for non-legal administrative powers.
While not part of Perry’s account, the notion of “non-legal administrative powers” invites another kind of theory. Timothy Endicott has recently argued for a conception of the prerogative as “doing good without a rule”. To a certain extent, this is just an extrapolation of the salus populi maxim. But there is an element of Schmittian decisionism here. Endicott argues that there is a category of “lawful” official action that is not “legal”; officials may act outside (against?) the law, provided only that they act for the salus populi. I can’t do the argument justice here, but I find the distinction between “lawfulness” and “legality” unconvincing. The debate about the sovereign being at once a product of and above the law goes back into the history of Western political thought. It is one on which reasonable minds will continue to differ. I prefer views that stress the reflexivity of law and political organisation. The special position of officials as products of legal rules makes the idea of extra-legal official action more difficult than suggested by truisms about the Ausnahmezustand. In any case, I feel some unease when Endicott suggests, in the context of R (Miller) v Brexit Secretary  UKSC 5, that HM Government might have equal or better democratic credentials than Parliament to act without a legal basis (but nonetheless “lawfully”). Perhaps if I were a Prime Minister minded to force a hard Brexit, I might find this kind of argument more appealing. Non-statutory executive powers will continue to provide a challenging context in which constitutional values, deontic logic, and doctrinal law interact with the changing modalities of administration. I hope that they will continue to enjoy attention from theorists—but I would urge all to start with the naïve question: Why is an act by Bob or Sally considered “official” or “administrative” at all?
Suggested Citation: J.G. Allen, Showcase–New Directions in Administrative Law Theory: Non-Statutory Executive Powers in the Commonwealth Constitutional Family, Int’l J. Const. L. Blog, Sept. 20, 2019, at: http://www.iconnectblog.com/2019/09/showcase–new-directions-in-administrative-law-theory:-non-statutory-executive-powers-in-the-commonwealth-constitutional-family
 See Janet McLean, Searching for the State (Cambridge 2012): JG Allen, “The Office of the Crown” (2018) 77(2) Cambridge Law Journal 298).
 See Alf Ross, On the Concept of State and State Organs (Almqist 1961).
 See BV Harris, “The ‘Third Source’ of Authority for Government Action” (1992) 108 LQR 626).
 Adam Perry, “The Crown’s Administrative Powers” (2015) 131 LQR 652
 Timothy Endicott, “Lawful Power” (2017) 15 NZJPIL 1
 See, e.g. Hans Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood” in Martin Loughlin and Neil Walker (eds.), The Paradox of Constitutionalism (Oxford 2009); see also JG Allen, “Review of Lars Vinx, Guardian of the Constitution” (2018) 81(2) MLR 361.