The empirical study of public law
Mapping the constitutional landscape
In terms of mapping out our constitutional landscape, it is important to recognize that public law scholarship has always had to do this. The exposition of public law in the textbooks is inevitably premised on an empirical claim about the identity of the major landmarks on the map, traditionally noted as the Crown, the Houses of Parliament, Ministers of the Crown and the courts. So the contribution here of empirical legal research does not represent a new enterprise, as such, for public law. Rather, its contribution is continually to update the field with new data, systematically obtained, which can help us refine our sense of the contours of the map. Our constitution is, after all, a dynamic entity (Jowell and Oliver, 2007). By surveying our constitutional landscape, empirical legal research can offer fresh accounts of what our constitutional map looks like and thereby develop our sense of what is essential or desirable knowledge for students of public law.
Many such public law developments have been so manifest in public life that they have been easily observed by scholars and included within public law analyses without the need for systematic data collection as such. For example, entities such as local government authorities, ombudsmen, the institutions of the European Union, and devolved parliaments and executives have effortlessly become part of the canon of public law textbooks.
Other important developments such as the 'contraction' of government, as Galligan (1996) has put it, in an era of new public management (Hood, 1991; Gamble and Thomas, 2010) and the rise of the regulatory state (Loughlin and Scott, 1997; Prosser, 2007) have also been observed and are now becoming the focus of a few textbook writers (e.g. Craig, 2008; Harlow and Rawlings, 2009).
Some public law developments, however, have been less immediately visible and have required empirical enquiry by way of a systematic review of institutional developments in order to reveal their scale and constitutional significance. An early example of such work would be Robson's Justice and Administrative Law (1928) where the growth of administrative tribunals was charted and its constitutional significance considered. A more recent example of work whose findings similarly challenge orthodoxy is that of Hood et al. (1999) who shed important new light on the regulation of government by public regulators. As Hood et al. noted in relation to regulation inside government:
[o]nly a minority of constitutional lawyers and political scientists have recognized regulation inside government as a key part of accountability regimes, and none has explored it systematically. Yet regulation in government merits attention as a matter of some political and constitutional significance. It is conventionally argued that the orthodox constitutional checks on executive government - the courts and elected members of the legislature - face inbuilt dilemmas and limitations as control and checking mechanisms ... Regulation inside government, coming somewhere between these two orthodox 'separation of powers' checking devices, accordingly has a quasi-constitutional importance ... [I]t is only beginning to be discussed as an overall system. (1999, p. 4)
Given the scale and importance of this system of public accountability, should we not be teaching our students more about it, alongside discussions of tribunals, ombudsmen, parliamentary debates and questions, the select committee system, judicial review, internal complaints systems and so forth?
Research such as that of Robson (1928) and Hood et al. (1999), which inter alia catalogues the scale of institutional developments, can also perform a related task which builds on this descriptive work. Through their findings, they can challenge some of the imagery that we use to describe our constitution. One such image still used in some public law textbooks to capture the architecture of our constitution is that of its three branches (the legislature, the executive and the judiciary), usually alongside a discussion of the separation of powers (e.g. Barendt, 1998). However, as work such as Robson's (1928) and Hood et al.'s (1999) suggests, a systematic examination of the various offices and organisations that populate our constitutional landscape undermines the usefulness of such imagery. Indeed, such is the complexity of our constitutional landscape that such imagery may obscure much more than it reveals (Jennings, 1933).
In addition to those already mentioned, we might also point to a number of accountability systems which cannot be accommodated easily within the imagery of three branches. These would include, for example, the various species of inquiries (e.g. Tomkins, 1998), human rights commissions (e.g. Langer, 2007), information commissioners (e.g. Austin, 2007; John, 2009) and public auditors (e.g. White and Hollingsworth, 1999; Lapsley and Lonsdale, 2010). We might also focus on specific entities such as the Committee on Standards in Public Life (Leopold, 2007) and the Administrative Justice and Tribunals Council (Thompson, 2010). All of these perform important roles of holding governmental power to account, but do not sit easily within the tripartite division of legislature, executive and judiciary.
Similarly, debates around legal and political constitutionalism (Griffiths 1979; Loughlin, 2000) are often cast as a question of the extent to which the courts, as opposed to Parliament, should have a role in holding government to account (e.g. Tomkins, 2005). Although the appropriate role of the courts in controlling governmental power is a central question for public law, the debate needs to place the courts in opposition not just to Parliament but also in opposition to the various non-parliamentary offices and entities which perform accountability roles.
In short, the imagery that is sometimes used to describe our constitution does not serve it well given what we know empirically about its increasing complexity. It is for this reason that Rubin (2005) has suggested we abandon the image of three branches and replace it with the image of a network (see also Buck et al., 2011). Although Rubin's thought experiment focuses on the USA, the suggestion is equally useful in relation to the UK. The benefit of a network image is threefold. First, it helps us visualize the complexity of our constitutional arrangements - all of the difficult-to-categorize entities and systems above with various investigatory, regulatory, executive and adjudicatory functions simply become locations or nodes on the constitutional network. Second, the image of a network is well equipped to accommodate changes in our dynamic constitution. As new institutions and bodies are created or abolished, they can simply be added to or deleted from the overall network. Third, there are various vantage points from which we might view a network. We can zoom in and zoom out, in other words. We may zoom in to identify and locate local bodies such as the Scottish Human Rights Commission or Information Commissioner. But we may also zoom out to locate the Westminster Parliament in a regional and international network where we may also identify other locations of power such as the European Parliament, the European Commission, the World
Trade Organization, the United Nations Security Council, and so forth. Public lawyers already talk in terms of a multi-layered constitution (e.g. Bamforth and Leyland, 2003; Gamble and Thomas, 2010), thus capturing the vertical dimension of our constitutional arrangements. The image of a network accommodates both vertical and horizontal dimensions and is better equipped to subsume ongoing empirical findings about the UK's constitutional map.