Abstract
This note will comparatively analyse the contested existence and development of the state and administrative law of the UK and France, subsequently using this historical perspective to evaluate the contemporary efficacy of judicial review in curtailing bureaucratic excess. The two nations reflect divergent models of state, England epitomising a traditionally ‘state-less’ notion, with France embodying a largely centralised one. This has had vital ramifications on the manifestation of administrative law and judicial review in these respective nations; most significantly, judicial deference to the executive is significantly accentuated in the former. An analysis of COVID-19 judicial review litigation will be undertaken through such a historical-political lens to explain the relative success claimants have experienced.
Introduction
The concept of the ‘state’ has historically been perceived as contentious in Britain, owing to the supersession of the state and public law by crucial constitutional principles, namely parliamentary sovereignty. In stark contrast, the ‘state’ lies at the crux of France’s political and legal progression, and has consistently been associated with a substantive notion of public law and administration.[1] However, the aggrandisement of the administrative state in the mid-twentieth century makes it imperative that a cogent concept of the state is ascertained, so as to clarify the dynamic between the sovereign, civil society, and citizens, and hence promote the rule of law. The Second World War presented a profound turning point in the emergence of the state, as the aftermath of the conflict compelled the need to reconstruct and repair Europe, thus precipitating the emergence of the welfare state and significant socio-economic centralisation. Both France’s 1946 Monnet Plan[2] and Clement Attlee’s varied agenda of centralisation, nationalisation, and socio-economic reform[3] engendered a newfound reliance on administrative law and the state to realise the envisaged reconstruction of Europe.
A jurisprudential analysis of the state will first be examined to foreground the practical discussion. In essence, the concept of the state has often been perceived as elusive and redundant in Britain, owing to the saturation of power within Parliament; by contrast, the pluriform administrative state has held longstanding historical authority within France. Ultimately, in Britain a legal personification of the state that is divorced from a rigid understanding of the Crown or Parliament as supreme proves to be the superior concept of the state, influenced by French jurisprudence. Although the political reality in England is that the constitutional principle of parliamentary sovereignty dominates understandings of the state, this status quo will be interrogated through the lens of Foucauldian statehood and power.
This theoretical discussion contains pertinent practical relevance when considering the COVID-19 pandemic, which saw an unprecedented use of, rather inevitably, unchecked executive power and consequently an array of judicial review claims. A comparative evaluation of judicial review in both France and England during the pandemic period will be undertaken through the lens of the aforementioned jurisprudential discussion of statehood. Ultimately, it is evident that a distinct theory of the state generates greater certainty and recognition of the rule of law in manifestations of judicial review. The nebulous nature of Britain’s state, characterised by an overreliance on parliamentary sovereignty, produces a judiciary that is more deferential to the agenda of the executive in times of crisis. Conversely, the French judiciary realises the full potential of its power relation within the state, afforded to it by a strong, historically entrenched notion of statehood.
Part I: The Creation of the State and Administrative Law
It is imperative for any analysis of administrative law to be prefaced with a discussion of the emergence of the state itself, particularly in the British context, where the notion of the state is notoriously elusive. As previously stated, England and France have experienced vastly differing evolutions in their respective administrative states, informed by contrasting ideologies. The leftist centralisation of the French state stands in stark contrast to the more ambiguous, decentralised administration of England. Hence, France serves as a fitting candidate for comparison, given that both nations have been privy to some of the most profound political changes in post-medieval European history. The French Revolution of 1789 and its subsequent developments instilled a need for centralisation and tempered freedoms, accelerating the inclination towards state formation. The Revolution sought to unify the country through seminal documents such as the 1789 Declaration of the Rights of Man and the first written Constitution of 1791. This centralisation was only bolstered during the first Napoleonic Empire, which saw the creation of the Code Civil.[4] Across the Channel, the Glorious Revolution embedded the ‘essence de la liberté’ and legal incrementalism[5] into the legal fabric through its cementing of Parliament’s function.[6] The Revolution Settlement of 1689 saw the emergence of constitutional monarchy, inaugurating the division between Crown and executive, and hence the powerful notion of parliamentary sovereignty.
These contrasting experiences have vested the respective nations with entrenched constitutional principles that are palpably reflected in judicial review and other forms of administrative law.
ii. Theoretical Conceptions of the State
The concept of the ‘state’ is indispensable to progress one’s understanding of administrative law and more coherently conceptualise the relationship between individuals, the sovereign, and the overarching civil society. However, its substance must be determined. The divergent forms of the British and French constitutions (uncodified and codified respectively) present issues with conceptualising the state. However, it can be shown that Foucault presents the ideal framework within which to interpret the state, as his concept convincingly represents the multifaceted nature of statehood and encourages a profound understanding of the place of the individual in power relations with the state.
The idiosyncratic nature of British legal development stands in stark contrast to that of France’s. Without a distinct ‘constitutional moment’,[7] a term coined by Bruce Ackerman to describe a specific transformative period which brings about lasting constitutional legal change, the British constitution has evolved incrementally and as a result of pragmatic and political needs. Contrastingly, the onset of the French Revolution in 1789 brought the sudden dismantling of the Ancien Régime and a tangible new legal order with it. The formation of numerous codified constitutions, starting with the 1804 Code Civil, and the consequent immortalisation of the key values of the Revolution grants French jurisprudence a more cohesive, discernible concept of the ‘state’.[8][9] As stated by Séébold, the ‘concept is impossible to avoid… because the country built itself on (or around) this idea’.[10] This was inaugurated during the Bonapartist empire (1804-1814), which ushered in a deeply centralised administrative state,[11] consequently necessitating two separate spheres of private and administrative, or public, law. Hence, the limits to political and legislative power in France are much more clearly delineated owing to codified restrictions, whereas these boundaries are more nebulous in England, as shall be practically demonstrated in the forthcoming discussion of COVID-19 judicial review.
In contrast to French jurists, despite the gradual aggrandisement of administrative bodies, Dicey has historically claimed that ‘in England we know nothing of administrative law, and wish to know nothing about it’.[12] The ascendancy of parliamentary sovereignty and the rule of law as the two paramount principles within Britain’s uncodified constitution has traditionally rendered the notions of the state and administrative law otiose. During the early nineteenth century, it was the predominance of these two constitutional principles that meant the country was ‘ruled but not administered from the centre’,[13] with citizens and public bodies both being subject to the same unitary legal system. While Dicey’s commentary on England represents orthodox thinking, which has indeed been challenged by the development of the welfare and regulatory state in the twentieth century, it retains an element of truth.[14] This is reaffirmed by Dyson, who more recently boldly concludes that in Britain the tripartite attributes of the state as a political concept, a legal institution, and a socio-cultural phenomenon are largely disregarded.[15] By contrast, the French state manifests as a totality of these elements, broadening its role. Thus, an evaluation of the multifaceted nature of the state is at the crux of a nuanced understanding of how administrative law functions contemporaneously.
Despite the value of the concept of the multifaceted state, retreating to the concept of the Crown as being most synonymous with statehood was the orthodox solution to resolving difficulties in defining the latter in England. Upon examination, however, the state is inadequately represented by the Crown. This conclusion has held long-standing legitimacy in France, where the notion of the Crown representing the state was swiftly eradicated following the Revolution. Contrastingly, in England, the act of synonymising the state with the Crown was pervasive, largely espoused by Blackstone.[16] However, Blackstone’s conceptualising became somewhat ostracised after Bentham submitted a scathing critique of the former’s dependence on the ultimate authority of the sovereign and allegedly empty concepts such as the Crown.[17] Thus, the practical approach embraced by Bentham benefits from a close examination of tangible power and how it is vested in real, not fictional individuals, preventing its abuse. Nonetheless, a more contemporary understanding of the Crown may allay Bentham’s qualms; Loughlin states that the Crown should be conceived as both a corporation aggregate representing wider society, as well as a governmental body, thus underscoring the relationship between the sovereign, civil society, and the individual.[18] This revival of the Crown-state relationship serves the overarching aim of fostering a culture of accountability within government, for the flow of authority to be clearly delineated and thus held responsible when it is abused. However, an even more politically cogent concept of the state can yet be ascertained.
This is presented in Foucault’s compelling conception of the state as a ‘scheme of intelligibility’.[19] Foucault claims that ‘the state is the entity which offers access to the nature of modern political reality’.[20] This is taken to mean that the state is an institution that acts as a complex amalgamation of constituting ideas, or more specifically three constituent elements of territory, population, and institutional bodies. It is the combined interrelationships between institutions and citizens that make up the state, making our political reality more intelligible. Existing governmental practices and bodies gain their legitimacy by rooting themselves within the abstract entity of the state, which acts as a point of reference.[21] Disparate, scattered governmental practices and power relations, such as ‘the economy, population management, law with the judicial apparatus, respect for freedoms, a police apparatus’.[22] become unified when they are seen to stem from the concept of the state. Hence, civil society and the populace emerged as concepts within the genesis of statehood.[23] This illuminates a valuable totality absent from the aforementioned alternative notions of the state. He grounds his concept of the state within the broader incipient notion of governmentality[24] and the accompanying relations of power within society.[25] Power dynamics are crucial to the body politic of the state, as Foucault emphasises the inextricable link between micro-power on the individual level and macro-power on the governmental level.[26] Foucault additionally highlights the importance of recognising the state as a practice, a ‘continual process of formation’,[27] rather than a rigid and permanently defined notion, which encourages a more active approach to diagnosing political deficiencies. In stark contrast to orthodox British jurists, who vest the state within the Crown, or indeed entirely denounce the concept of the state and instead identify ultimate authority with parliamentary sovereignty, Foucault is not preoccupied with identifying one concrete source of state power.[28]
The merit of this conception of the state lies in its fluidity and the way in which it encompasses the political, legal, and socio-cultural facets of the state whose modern recognition Dyson advocates.[29] Foucault’s concept directly forces one to confront the dynamic between the individual, civil society, and sovereign, while evading the deficiencies of treating the Crown as synonymous with the state. As Zizek notes, ‘one might say that the main point of [Foucault’s] late work was to articulate the different modes by which individuals assume their subject-positions’ in relation to the state.[30] This is effectively the current jurisprudential reality in France; the state is taken to have a legal personality to further the common good of the nation, a thesis most prominently illuminated by Duguit’s jurisprudential counterpart, Hauriou.[31] He recognises the need for the state to represent an abstract form of authority, and simultaneously the broader societal order within which this fictional moral entity exists.
Furthermore, applying Foucault’s framework of the state, as opposed to one grounded solely in the Crown, provides a more historically holistic understanding of the expansion of administrative law theory in England in the latter half of the twentieth century. This understanding transcends the recognition that parliamentary sovereignty primarily characterises British statehood. Auby identifies a recent ‘triple awareness’ within scholarship that has shifted the paradigm definition of what the ‘state’ and thus administrative law are taken to mean.[32] Firstly, since the mid-twentieth century, the increased interventionism of government in political and social affairs through the welfare state, and the broader concept of civil liberties, has furnished the constitution with a vast amount of administrative legislation. This embrace of the welfare state is exemplified by the implementation of the 1932 Beveridge Report, which laid the foundations for the introduction of valuable social instruments such as the National Health Service and National Insurance under the tenure of Clement Attlee’s Labour Party.[33] The ratification of the European Convention on Human Rights (‘ECHR’) in 1951 further laid out a framework of socio-political responsibility that engendered notions of equality and democracy. Furthermore, the previous immunities granted to public bodies have been gradually rescinded. The exemption that ‘the King can do no wrong’ was abolished in the 1947 Crown Proceedings Act,[34] which necessitated new boundaries to the acts of the Crown and a new means of holding the Crown responsible. Finally, the aforementioned growth of state intervention resulted in the creation of ‘mid-judicial mid-administrative entities’, or tribunals. The confrontation with these three phenomena triggered the so-called ‘triple awareness’ as scholars could no longer assert that discussion of the ‘state’ was futile, and that administrative or public law did not occupy its own realm in the constitution. Foucault’s concept of the state as a ‘scheme of intelligibility’ is legitimated by this historical evolution, as it accounts for the genesis of administrative law and the recognition that the sovereign is a legal personality with more nuanced dynamics with individuals and civil society. While complex, this understanding of the state does not founder from the ‘normative impoverishment’[35] that is associated with a contemporary Weberian concept of the state, for example, that purely ascribes the government apparatus to it.
Ultimately, then, what unites the thinking of the aforementioned academics is a search to prescribe the existence and limits of authority, which is crucial in periods of emergency such as that seen during the COVID-19 pandemic. Although the concentration of state authority within parliamentary sovereignty in England is undeniable, Foucault’s framework of the state is the most apt for bridging the contemporary political and legal spheres and broadening our understanding of ‘political reality’ and administrative law, both in England and France.
Part II : Contemporary Reflections on Judicial Review: COVID-19 Litigation
The second part of this note will reflect on the contemporary ramifications of the historical development of the notion of the ‘state’ on the manifestation of judicial review and judicial deference in England and France, particularly in the context of COVID-19 litigation. The palpable contrast in the outcomes of claims between the two jurisdictions largely lies in the historical development of each respective country’s administrative state, as previously explored. The deferential approach undertaken in England can be criticised through the framework of Foucault’s state, leading one to conclude that the judiciary should be more cautious in their overzealous recognition of parliamentary sovereignty.
- Judicial review during the pandemic
The COVID-19 pandemic was a period of extraordinary oversight by government, given the urgency of the circumstances, and thus serves as a unique barometer of judicial deference and the capacity of judicial review to remedy bureaucratic excess. Unlike other contentious topics such as immigration or terrorism, which elicit circumstances specific to each country, the pandemic was a universally felt emergency, which further highlights its marked aptness for discussion.
While the pandemic naturally strained the process of judicial review in both countries, there is an overarching divergence whereby claimants in France experienced greater success in COVID-19-related judicial review, both in terms of outcome as well as the efficacy of procedure. Hickman and Tomlinson highlight that in England and Wales, there was an expectation for judicial review to be ‘accommodating to governments both substantively and procedurally’,[36] resulting in higher thresholds for claims for ultra vires, irrational, or disproportionate consequences emerging from COVID-19 legislation. This is concerning given the breadth and pertinence of COVID-19-related legislation.[37] The nature of statutory instruments necessitated thorough scrutiny, given the arguable illegitimacy of such broad delegated powers, although the circumstances meant that only minimal enforcement of checks and balances was guaranteed.[38] In this way, rules governing extended confinement at home, the closure of schools and workplaces, the capacity to meet with others, and a plethora of other facets of life came into effect. A similar phenomenon unfolded in France, where ‘from March 2020 to June 2021, the official website Legifrance had published 757 laws, decrees, and administrative acts containing the term “COVID-19”’.[39]
Naturally, these unprecedented circumstances attracted legal challenges. The crucial claim for judicial review in England and Wales was Dolan.[40] The claim arose out of concern that the COVID-19 lockdown regulations created an unprecedented control over civil liberties by government functionaries and were thus ultra vires. At the crux of the claim were three issues:
- Firstly, ‘whether the Government had the power under the 1984 [Public Health] Act to make the lockdown regulations’;
- secondly, whether the regulations were unlawful ‘given that officials had unlawfully fettered their discretion and did not weigh interests other than public health’; and
- lastly, whether the regulations breached the Human Rights Act 1998 (‘HRA’).[41]
At first instance, the judge rejected all three grounds, with reasoning that appears rooted in considerable deference to the executive, reflected in the conclusion that ‘[t]he decision on proportionality and necessity under the 1984 Act and Regulations is, ultimately, for the minister’.[42] An additional caveat was the fact that the regulations relevant to the claim had already been repealed, meaning judicial review would be ‘academic and historic’,[43] with scope only for symbolic rather than practical success. This pattern of reasoning would become prevalent in subsequent judicial review claims, with only one case in the United Kingdom, in Scotland, being successful insofar as restriction regulations were concerned. In re Philip[44] decided that Scottish regulations restricting the opening of churches and thus public worship were contrary to Article 9 ECHR, as incorporated with domestic effect by the HRA, the freedom to practise religion; the reasoning here notably interrogated the excessive nature of the Government’s regulations, although the outcome was exceptional, with analogous cases in England and Wales echoing the reasoning of Dolan.[45]
Contrastingly, in France, both the number of challenges to COVID-19 legislation and the rate of success were considerably higher than in England and Wales. The Conseil d’État, France’s highest administrative court, ‘reported that it issued 840 interim measures related to the coronavirus of a total of 1,208 interim measures in 2020, which was six times more than in 2019’.[46] Moreover, it is estimated that around 10% of the challenges were successful,[47] in contrast to England and Wales, where astoundingly no claims (attacking the legal basis of lockdown regulations) succeeded. Interestingly, in France, the recognition of crucial human rights was given greater precedence in the successful cases; in direct comparison to the English case of Hussain, the Conseil d’État held that the ban on gatherings within religious buildings did in fact violate Article 9 of the ECHR.[48] The French Conseil Constitutionnel (Constitutional Council), the highest constitutional court, has the power to strike down a legislative provision deemed unconstitutional, striking out the provision and rendering it inapplicable. Moreover, the executive and legislature conform to the preferences of the constitutional court expressed in case law in displaying ‘autolimitation’[49] and ‘corrective revision’,[50] a profound phenomenon considering it is the English courts who have in recent times exercised self-restraint in the face of the preferences of the other two branches of the state. In this way, the powers historically arrogated by the state to the apex constitutional and administrative courts result in salient impacts on lawmaking and the dynamic between the judiciary and the executive. Despite this, the phenomenon identified by Hickman and Tomlinson as the ‘second look’ function of English courts may reveal a more tempered form of deference.[51] Although having a less palpable impact than decided cases, the wider threat of judicial review caused state functionaries to rethink, or have a ‘second look’ at, COVID-19 regulations, highlighting the holistic positive impact of judicial review in England.
From a substantive perspective, it is evident that scrutiny of legislation was demonstrably more intense in French administrative courts. While decisions in England were rife with judicial deference to the executive, ‘that is most definitely not the approach under French administrative law’.[52][53] Hickman and Tomlinson conclude that it was the courts themselves who did not substantively ‘partner’ with the Government to ensure ‘rules and decisions were rational, proportionate and lawful’.[54] While in France the administrative judge ‘became key actor’,[55] in England and Wales judges appeared to resile from their responsibility of preserving the separation of powers. Hickman and Tomlinson astutely evaluate the absence of express or necessary implication in section 45C of the Public Health (Control of Disease) Act 1984 that regulations could confine the whole population to their homes.[56] The fact that both the Administrative Court and the Court of Appeal in Dolan neglected to interrogate this arguably incontrovertible contravention of the principle of legality emphasises the (perhaps unwitting) complicity of the judiciary in legitimising the undetermined, wide-reaching powers of the state. Nonetheless, judicial caution may be warranted in the context of the urgent and rapidly developing COVID-19 pandemic. This is reflective of Kavanagh’s identification of institutional reasons for deference, namely the fact that judges are not equipped with sufficient expertise to adjudicate substantively on executive decisions.[57] Following from this, it could be argued that the judiciary were simply maintaining the separation of powers elucidated by the concept of Parliamentary sovereignty.
Yet, it is submitted that it is especially in exigent circumstances that the courts should be scrupulous so as to ensure that the balance between the branches of state is appropriate, given that the risk of infringement of fundamental rights is more perilous. As expressed by Lord Hoffman in ex parte Simms, the principle of legality affirms that ‘in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual’.[58] The mere fact that a public health crisis existed did not warrant judicial deference via more lenient interpretation of the relevant statute.[59] Respect for parliamentary sovereignty must not be expressed at the expense of the weakening of the judiciary and the destabilising of the power relation between the state and the population.
- The relationship between COVID-19 judicial review and the history of the state
These contemporary developments parallel the historical and philosophical roots of the state and administrative law in England and France. The entrenchment of a distinct branch of administrative law in the latter vests French judges with a stronger ideological conviction to hold the state accountable. The concepts of service public and puissance publique, which are at the crux of French administrative law, confirm the natural predisposition in France towards legal accountability of the State, as seen during the COVID-19 period. Administrative organs carry out public services (services publics) and thus must be subject to special rules, a concept theorised by Duguit. In conjunction with this is the idea that authorities must be subject to special administrative rules as they represent the ‘public power’ (puissance publique), proposed by Hauriou.[60] These theoretical facets of French public law reaffirm the centrality of administrative judges and the value placed on accountability, which echoes the Foucauldian conception of the state as a scheme of intelligibility that ultimately serves the common good and the rule of law. Aligned with this is the historically entrenched nature of the Conseil d’Etat. Since its inception as part of the 1799 Constitution, the Conseil has played a significant role in upholding the rule of law in administrative matters.[61] In this way, the early 1900s presided over the development of a sophisticated form of judicial review, with a greater prevalence of procedural illegality, improper purpose, and ‘error of law’ in respect of administrative decisions being identified.
While the French duly welcomed the expansion of administrative law, calls for its inception in the early twentieth century in Britain were stagnated by ideological fears of the allegedly ‘socialistic’[62] nature of public law. A substantial form of interrogating administrative actions was perceived as ‘the invasion of the rule of law by imposing judicial functions upon officials’.[63] Despite attempts to rationalise the existing irregular system of tribunals, for instance the partial implementation of the Donoughmore Report,[64] it was only in the mid-1960s that the courts engaged more vigorously with the ‘procedure for preventing the abuse of power’.[65] This evolution is inherently consistent with the aforementioned centrality of parliamentary sovereignty in the British constitution. Moreover, it embodies the orthodox ultra vires model of judicial review,[66] whereby judicial review is legitimated on the ground that the courts are applying the boundaries pronounced by Parliament in legislation. This has been reaffirmed by Lord Steyn in Boddington,[67] where he explicitly stated that the ultra vires model should still be regarded as the normative foundation of judicial review, as well as more recently by Lord Reed, the President of the UK Supreme Court.[68] Since the beginning of his tenure in 2020, Lord Reed’s Supreme Court has propelled a ‘renewed emphasis on the centrality of Parliament… as the ultimate source of the political legitimacy of governments’.[69] Thus, particularly during periods of crisis, judicial self-restraint and fidelity to the will of Parliament in England can be explained by the historical lack of a distinct notion of the state and the strong reliance on parliamentary sovereignty as a foundation for judicial review. Abandoning this orthodox view in favour of a more scrupulous, common-law approach to judicial review would, in the opinion of Lord Reed and those espousing the absolute sovereignty of Parliament, be tantamount to judicial supremacism and a violation of the traditional constitutional relationship between Parliament and the courts.
The ramifications of such differing histories of state formation are palpable in COVID-19 judicial review, where English judges exhibited a greater sensitivity to the inclinations of the executive. While an interrogative approach in the domain of public law has been considerably normalised in the French state, it is clear that contemporary English judges have not inherited the same radicality that was expressed in the latter half of the twentieth century in profound cases such as Anisminic and Baldwin.[70] The reason for this is that the dynamic between the sovereign, civil society, and citizens has not historically been clearly elucidated, given the emphasis on parliamentary sovereignty. Thus, the intervention of judges in matters deemed more political, especially in times of crisis, has not been legitimised as it has been in France.
- Concluding remarks on Foucault: reconciling the current paradigm
Bringing the discussion to a close, it is apt to reflect on these recent judicial developments through the framework of the Foucauldian notion of the state. It is evident that the French state fits more neatly into Foucault’s ‘scheme of intelligibility’. The judgments of the French administrative courts reaffirm the centrality of the abstract notion of the state as a point of reference. By contrast, the English courts persistently legitimated their reasoning on the basis of upholding parliamentary sovereignty and the discretion it affords to the executive to balance the various rights of citizens. If we are to examine the state in the Foucauldian sense as a practice, in a gradual process of formation, rather than a static notion, it is clear that the searching, less deferential approach exhibited in France displays this fluidity. Conversely, in its attempt to hold parliamentary sovereignty as sacrosanct, the current condition of British judicial review is stagnant and less responsive to the individual. Moreover, the interrelationships between the various political institutions of France displays the deeper richness and nuance Foucault envisages of the state, whereas in Britain the executive, acting under the bailiwick of parliamentary sovereignty, appears to be the dominant driver of action – at the cost of a weaker judiciary, and a weaker assemblage of fundamental freedoms. Foucault states emphatically that freedom is an element of the state ‘that has become indispensable to governmentality itself’, and that an abuse of freedom is ‘not only an abuse of rights with regard to the law, it is above all ignorance of how to govern properly’.[71]
Foucault’s understanding of power as a relational concept that does not emerge from discrete, specific sites (such as, say, parliamentary sovereignty) holds pertinent ramifications for the orthodox understanding of British statehood. Mills highlights Foucault’s presentation of power as ‘unstable and in need of constant repetition to maintain’.[72] It is this fragility which leads one to argue that orthodox conceptions of British statehood are paradoxical; attempting to maintain the sacrosanct visage of parliamentary sovereignty through power (and the retreat of the courts) will be futile as, according to Foucauldian theory, the inherent sensitivity of power renders one body’s attempt at domination impossible. Hence, the judiciary’s deference to the executive is counterintuitive; a productive, Foucauldian formulation of state power points to the potential for a more balanced power dynamic between the courts, executive, and the population.
Conclusion
In conclusion, it is evident that a theoretical understanding of the fundamental roots of the state allows one to accomplish a more searching discussion of administrative law, as demonstrated by the present analysis of COVID-19 litigation. The concept of the state is not, as some British scholars argue, entirely superfluous. In comparing varying conceptions of the state in France and England, it is apparent that the absence of an unambiguous notion of the state in the latter has historically hindered the recognition and development of a distinct branch of public law. This has significant implications for the dynamic between civil society, citizens, and the sovereign, given the more obscure means of identifying where power resides and the means in which it can be quelled in instances of its abuse. In particular, Foucault’s concept of the state provides a broader understanding of state power and how this manifests in England. Hence, one may conclude that the more decisive and rigorous nature of COVID-19 judicial review in France is in part owed to its unambiguous concept of statehood, in contrast to England where a less authoritative administrative judiciary reflects the conventional sovereignty of parliamentary, or more prevalently executive, will.
[1] Sabino Cassese, ‘The Administrative State in Europe’ in Sabino Cassese, Armin von Bogdandy, and Peter Huber (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press 2017).
[2] See Warren Baum, The French Economy and the State (Princeton University Press 1958).
[3] See Rachel Reeves and Martin McIvor, ‘Clement Attlee and the foundations of the British welfare state’ (2014) 22(3-4) Renewal 42.
[4] Code Civil des Français (21 March 1804).
[5] Legal incrementalism is taken to mean the organic development of the English common law.
[6] Cassese (n 1) 61.
[7] Eben Moglen, ‘The Incompleat Burkean: Bruce Ackerman’s Foundation for Constitutional History’ (1993) 5 Yale Journal of Law & the Humanities 531.
[8] Jean-Bernard Auby and Marcel Morabito, ‘Evolution and Gestalt of the French State’ in Sabino Cassese, Armin von Bogdandy, and Peter Huber (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press 2017) 172.
[9] To be clear, the fact that a constitution is codified does not inherently, in and of itself, make the concept of the state more robust, although it does lay strong foundations. It is both the form of the constitution, as well as its substance, that determines whether or not the state is clearly elucidated.
[10] Nicholas Séébold, ‘The Current Situation Regarding the Relationship between the French State and the French Public Law’ (2022) 50 International Journal of Legal Information 55.
[11] The Code Civil, created in 1804, codified the Revolutionary concepts of fundamental rights and duties of man, equality, and property rights. Despite its content being gradually refined, the Code remains the foundation of the relationship between state and citizen in France.
[12] Robert Thomas, ‘The Development of Administrative Law in the United Kingdom (1890-1910)’ in Giacinto della Cananea and Stefano Mannoni (eds), Administrative Justice Fin de siècle: Early Judicial Standards of Administrative Conduct in Europe (1890-1910) (Oxford University Press 2021).
[13] Cassese (n 1) 62.
[14] A recent reaffirmation of this sentiment can be witnessed in the case of In Re Allister and Others [2023] UKSC 5, [2024] AC 1113, where it was expressed that ‘[t]he most fundamental rule of UK constitutional law is that Parliament… is sovereign and that legislation enacted by Parliament is supreme’: [66] (Lord Stephens) (emphasis added).
[15] James Meadowcroft, ‘Introduction’ in Conceptualising the State: Innovation and Dispute in British Political Thought 1880-1914 (Oxford University Press 1995) 11.
[16] Janet McLean, ‘Searching for the State’ in Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge University Press 2012) 2.
[17] ibid.
[18] ibid.
[19] Martin Loughlin, ‘The Concept of the State’ in Foundations of Public Law (Oxford University Press 2010).
[20] ibid.
[21] Mathias Jessen and Nicolai von Eggers, ‘Governmentality and Statification: Towards a Foucauldian Theory of the State’ (2019) 37(1) Theory, Culture & Society 53.
[22] Michel Foucault, Security, Territory, Population: Lectures at the College de France, 1977-78 (Palgrave Macmillan 2007) 452.
[23] Michel Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978-79 (Palgrave Macmillan 2008) 297.
[24] A governmentality can be understood as an assemblage of practices, or ‘way of doing things’, that makes up the overarching art of governing exemplified by the state. See, for instance, Foucault, The Birth of Biopolitics (n 23) 77, 144.
[25] Foucault (n 22) 325.
[26] ibid 455.
[27] Jessen and von Eggers (n 21).
[28] Foucault comments that ‘reducing the state to a certain number of functions’, or sources of power, is emblematic of a ‘reductionist vision’. See ‘Governmentality’ in Graham Burchell, Colin Gordon, and Peter Miller (eds), The Foucault Effect: Studies in Governmentality (University of Chicago Press 1991) 103.
[29] McLean (n 16) 2
[30] Slavoj Zizek, The Sublime Object of Ideology (2nd edn, Verso 2008) 197.
[31] Hugh Stuart Jones, ‘Maurice Hauriou and the theory of the institution’ in The French State in Question (Cambridge University Press 1992).
[32] Jean-Bernard Auby, ‘The Transformation of the Administrative State in Europe’ in Sabino Cassese, Armin von Bogdandy, and Peter Huber (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press 2017) 605.
[33] Reeves and McIvor (n 3).
[34] Auby (n 32) 605.
[35] JAG Griffith, ‘The Political Constitution’ (1979) 42(1) Modern Law Review 326.
[36] Tom Hickman and Joe Tomlinson, ‘Judicial review during the Covid-19 Pandemic’ (2023) 27(3) Edinburgh Law Review 252, 254.
[37] ibid 254: the ‘UK Government laid 582 COVID-related statutory instruments before Parliament between the start of 2020 and 3 March 2022’.
[38] For instance, Parliament considered the Coronavirus Act 2020 in only four sitting days, the overarching approach having been described as a ‘machine gun legislative response’: see Duncan Fairgrieve and Francois Lichere, ‘Judicial Review of Coronavirus Measures in the United Kingdom and France’ (2024) 58 Georgia Law Review 1281, 1285.
[39] ibid 1288.
[40] R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, [2021] 1 WLR 2326.
[41] Fairgrieve and Lichere (n 38) 1291.
[42] [2020] EWHC 1786 (Admin) [59].
[43] ibid [26].
[44] In re Philip [2021] CSOH 32 [2].
[45] See R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin). Hussein mirrored the claim of In Re Philip, the appellant arguing that certain regulations that hindered the carrying out of Friday prayers were contrary to his Article 9 right to practise his religion.
[46] Fairgrieve and Lichere (n 38) 1281.
[47] ibid.
[48] ibid. In light of citizens having permission to go to shops, schools, and libraries, the ban on religious gathering was rightly seen as disproportionate, reflecting significantly more accommodating reasoning than that of the English courts.
[49] The ex-ante act of self-restraint by the government in anticipation of the annulment of a bill: see Alec Stone Sweet, ‘The politics of constitutional review in France and Europe’ (2007) 5(1) International Journal of Constitutional Law 69, 87.
[50] ibid: the ex-post revision of a bill in line with the preferences of the court, greatly informed by case law.
[51] Hickman and Tomlinson (n 36) 279-83.
[52] Fairgrieve and Lichere (n 38) 1305.
[53] To an extent, procedural factors played a role in the dissimilar experiences: see Fairgrieve and Lichere (n 38). For instance, French courts provided expedited processes for judicial review in coronavirus cases, known as référé liberté and référé suspension, which allowed cases to be determined in a few days or weeks respectively; by contrast, in England this could range from 200 to 400 days on average: 1303. This fundamental procedural discrepancy between jurisdictions explains the prevalence of the rejection in the English and Welsh jurisdiction of judicial review claims on the basis that claims had become ‘academic’ or ‘historic’: during the time that had lapsed between claim issuance and permission to proceed, the relevant offending regulation was often no longer in force.
[54] Hickman and Tomlinson (n 36) 282.
[55] ibid 257.
[56] ibid 258.
[57] Aileen Kavanagh, ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’ in Grant Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press).
[58] R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, [2000] 2 AC 115, 131.
[59] This point has been emphasised in respect of judicial review during previous socio-political crises, such as the threat of international terrorism in the 2000s. See, in particular, Ahmed and Others v HM Treasury [2010] UKSC 2, [2010] 2 AC 534 [6] (Lord Hope): ‘the safety of the people is not the supreme law. [The judiciary] must be just as careful to guard against unrestrained encroachments on personal liberty’.
[60] Auby and Morabito, ‘Evolution and Gestalt of the French State’ (n 8) 188.
[61] ibid 184: Auby identifies the genesis of the Republic in 1875 as the definitive moment which catalysed the Conseil’s ‘growing independence, growing professionalism, and strong creativity with regard to case-law’, which was reinforced by an 1872 statute that conferred full adjudicatory power on the Conseil.
[62] AV Dicey, An Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) xliv.
[63] ibid xxxix.
[64] Donoughmore Committee, Report of the Committee on Ministers’ Powers (cmd 4060, 1932). The Committee on Ministers’ Powers, chaired by the Earl of Donoughmore, was appointed to consider the rapidly increasing breadth of administrative powers afforded to government functionaries. The conclusion made in relation to administrative law can be taken from page 73: ‘Any encroachment on the jurisdiction of the courts, and any restriction on the subject’s unimpeded access to them, are bound to jeopardise his rights to a much greater degree than would be the case in a country like the United States where they are protected by the express terms of a written constitution.’ See also John Gaus, ‘The Report of the British Committee on Ministers’ Powers’ (1932) 26(6) The American Political Science Review 1142.
[65] Martin Loughlin, ‘Evolution and Gestalt of the State in the United Kingdom’ in Sabino Cassese, Armin von Bogdandy, and Peter Huber (eds), The Max Planck Handbooks in European Public Law: Volume I: The Administrative State (Oxford University Press 2017) 483.
[66] Paul Craig, ‘Competing Models of Judicial Review’ (1999) Public Law 428.
[67] Boddington v British Transport Police [1998] UKHL 13, [1999] 2 AC 143.
[68] This deference towards the executive was expressed in SC, where he expressed that ‘the judgement of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation’ in the realm of social and economic policy: see R (SC, CB and 8 children) v Secretary of State for Work and Pensions and Others [2021] UKSC 26, [2022] AC 223 [158].
[69] Jonathan Sumption, ‘Letters’ (10 February 2022) 44(3) London Review of Books.
[70] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Ridge v Baldwin [1963] UKHL 2, [1964] AC 40.
[71] Foucault, Security, Territory, Population (n 22) 451.
[72] Sarah Mills, Michel Foucault (Routledge 2003) 47.
Angelina Koval
LLB (LSE) ’26 and Notes Editor of the LSE Law Review 2024-25