Administrative expertise in the UK

The latest Journal of Environmental Law has a review essay by Elizabeth Fisher, "The Enigma of Expertise", reviewing Knowledge, Policy and Expertise: The UK Royal Commission on Environmental Pollution 1970–2011, by Susan Owens (OUP, 2015). Some of the historical background in the article (with footnotes omitted and links added):

Within UK administrative law and public administration there has always been scepticism of attempts at bureaucratic rationalisation. Public administration in most jurisdictions grew in a haphazard fashion but in the UK particularly so. The reasons for this are many and overlapping. The lack of a vigorous doctrine of separation of powers and thus a fused constitutional and administrative law is one factor. The failed ‘Prussian bureaucratic’ experiments of Edwin Chadwick in the 19th century another. As is the ideal of the generalist civil service as promoted by the Northcote Trevelyan Report in 1870. Administrative law took far longer in the UK to be recognised and when it did the American administrative lawyer, Kenneth Culp Davis accused British judges of being too much like ‘bricklayers’ and not enough like ‘architects’. He also noted that ‘the essence of the administrative process is missing from the literature of English administrative law’. It is also useful to remember that Lord Diplock’s articulation of the three grounds of judicial review was an act of codification not rationalisation. As Kamenka has put it, the common law also has traditionally had an ‘anti-administrative character’....

Throughout the 19th century, there was a ‘piecemeal accumulation of expertise’ in British government. By the 1920s, the need for expert public administration was becoming obvious. A major catalyst for this need was World War I as it made clear the nexus between knowledge and power. Recognising that nexus did not however result in a rose tinted understanding of expertise. ‘The expert is a notoriously bad judge’ ECS Wade wrote in 1930 (judges on the contrary were of course good at judging). Lord Hewart in 1930 wrote that expert officials were ‘naturally and necessarily hidden and anonymous’ so that they could not be examined or ‘brought to book’. Zimmern noted that ‘the solution worked out by Expert Committees are not edicts imposed by an omniscient dictatorship’.

It was not that expertise did not play a role, but a very particular one. Expertise needed to be connected with the ‘actual practice of administrative law’. The expertise envisioned was not ‘technical’ or technocratic. As Leslie Scott (the ultimate chair of the Donoughmore Committee) noted ‘To us Englishmen the rationalistic attitude of mind is alien in life as well as law.’ Likewise, such expertise had to be practical: ‘it is said that if a bureaucrat wants to damn a proposal he calls it academic’. The Haldane Committee in 1918 may have called for greater expertise in government but they explicitly stated, despite the formal title of their report, that bureaucracy was not a ‘machine’ and pointed to the ‘living forces’ supplied by Parliament. In promoting expertise, they also focused upon deliberation and ‘the duty of investigation and thought as preliminary to action’.

The general distrust of both rationalisation and rational expertise meant that while the administrative state began to solidify as a concept post-World War II, this did not result in the bureaucratisation of expertise. The civil service was largely generalist and experts were advisors. Even when the Fulton Report in 1968 called for greater expertise in the civil service, it was arguing against a ‘rigid’ vision of civil service organisation: "The public interest must suffer from any exclusiveness or isolation which hinders a full understanding of contemporary problems or unduly restricts the free flow of men, knowledge and ideas between the service and the outside world."

As such, ‘imaginative humanity’ as opposed to ‘administrative uniformity’ was more important. Likewise, the Robens Report in recommending the creation of a new body to oversee occupational health and safety (which led to the creation of the Health and Safety Executive and the Health and Safety Commission). They explicitly argued that while such a body would ‘pool’ expertise such expertise was not so much in terms of ‘formal qualifications in the academic or narrow professional sense’ but in the ‘broadest sense’.

And that returns me to Owens’ book. All of the above gives the scholar pause for thought. The role of expertise in British public life is counter-intuitive and defies easy explanation. Studying the RCEP, a body somewhat unique, exacerbates this scholarly predicament. While the creation of the RCEP in 1970 was embedded in the above discourse and its institutional form (a Royal Commission) is distinctively British, its longevity and the breadth of its remit makes it unique. The RCEP existed between 1970 and 2011. As Owens notes, its Royal Warrant described its remit as ‘to advise on matters, both national and international concerning the pollution of the environment; on the adequacy of the research in this field; and the future possibilities of danger to the environment’. It produced 33 reports over its life span, some short, some long, covering a range of topics. As an institutional artefact, the RCEP is perhaps closer (although still very different) to the Law Commission of England and Wales than to public inquiries that focus on a specific event.