Administrative Law, Red and Green Light Theories

5307 Words Jul 13th, 2012 22 Pages
Cambridge University Press 978-0-521-70179-2 - Law and Administration, Third Edition Carol Harlow and Richard Rawlings Excerpt More information

1

Red and green light theories

Contents
1. Law and state 2. The Diceyan legacy (a) Dicey and the rule-of-law state (b) ‘The English have no administrative law’ (c) State and Crown (d) The state and statutory authority (e) Public and private law 3. Dicey and ‘red light theory’ 4. Ouster clauses and the rule of law 5. ‘Green light theory’ 6. ‘Green light theory’ and control 7. Allocation of functions 8. Towards consensus?

1. Law and state
Behind every theory of administrative law there lies a theory of the state. As Harold Laski once said, constitutional law is unintelligible except as the
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But it was not a part of government’s function to act upon society, nor was it expected that legislation would do much more than sustain clear and established customs. In contrast the new conception was of government as the instigator of movement. This conception of movement was not restricted to the parties of progress or reform; the Conservative and Unionist Party at the beginning of the twentieth century was increasingly characterized, despite opposition, by a commitment to tariff reform, a programme of discriminatory trade duties designed to . . . provide funds for new military and social expenditure at home. Government was not merely to regulate society, it was to improve it.3

This was, in short, the beginning of the age of ‘collectivism’, as Dicey termed socialist theories that favoured ‘the intervention of the State, even at some
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C. Carr, Concerning English Administrative Law (Oxford University Press, 1941), pp. 10–11. R. Barker, Political Ideas in Modern Britain, 2nd edn (Methuen, 1997), pp. 14, 18.

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Cambridge University Press 978-0-521-70179-2 - Law and Administration, Third Edition Carol Harlow and Richard Rawlings Excerpt More information

3

Red and green light theories

sacrifice of individual freedom, for the purpose of conferring benefit upon the mass of the people.’4 Dicey acknowledged collectivism grudgingly, although presciently he foresaw its influence as
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