Revealing the practices of public entities
The second contribution of empirical legal research to the study of public law is to reveal the actual operations of public bodies and offices. At first glance, this may seem like a superfluous endeavour for public lawyers to embark upon. As noted in the introduction to this chapter, by virtue of the uncodified nature of our constitution, public law scholars have an unavoidable empirical interest in constitutional practice. Given the importance of conventions to the UK constitution, public lawyers must concern themselves with political practices around issues such as the exercise of prerogative powers, the accountability of Ministers to Parliament, and so forth. Much of these data are routinely placed in the public domain, do not require empirical enquiry as such and are, accordingly, very familiar terrain for the textbook writers. Equally, research aimed at revealing the practices of public entities may seem redundant given that it appears to mirror the basic function of the constitution itself. The complex and varied public accountability systems noted in the previous section are all geared towards revealing the realities of how public bodies operate. Everything from parliamentary debates and questions, to the select committee system, to ombudsmen investigations, to certain forms of inquiry, to public audit, to regulatory oversight, to freedom of information regimes, all share the task, inter alia, of opening up the operations of various constitutional actors to public scrutiny. Public lawyers have made great use of such data to assess and critique constitutional relations and governmental action (e.g. Tomkins, 1998). Why should we additionally go beyond these readily available sources of data and use the research techniques of the social sciences to obtain even more data about the workings of public bodies?
The answer is twofold. First, notwithstanding the complex ways in which we hold public power to account, there is still a great deal about the workings of public bodies that we do not understand. The data produced by accountability mechanisms often give only a limited picture of a more complex empirical reality, particularly where they emerge from dispute resolution forums (Halliday and Scott, 2010). It is not just our systems of accountability that have grown in an attempt to match the increased expansion and complexity of state activity during the last century. Our ignorance of governmental operations similarly and inevitably tracks the expansion of government in all its forms. A great deal of the 'public life' of our constitution still takes place in the dark. Yet, the critique and assessment of our constitution - a very familiar and important aspect of public law scholarship - need a solid empirical understanding of constitutional operations as their foundation (Daintith and Page, 1999).
Second, public lawyers have justifiably been curious about the use and effectiveness of the accountability mechanisms that exist: to what extent are the accountability mechanisms that are available for use by citizens actually put into action? In what ways do accountability mechanisms make a difference to the ways in which public bodies work? Such questions are not only of intrinsic interest. They also relate to normative and doctrinal questions - the bread and butter of public law scholarship. For example, some questions of impact, such as the potential effects on public service delivery of damages payments in tort or human rights cases, are doctrinally relevant (King, 2007). Equally, normative debates in public law, such as the appropriateness of state liability in tort law (e.g. Harlow, 2004; Halliday et al., 2011) or about changes in the heads of review in administrative law (King, 2010), can and should draw on questions of impact (Richardson and Sunkin, 1996). Much of public law debate rests on explicit or implicit empirical assumptions about constitutional operations. Legal research that reveals the practices of public entities, accordingly, has a general importance.
Some empirical legal researchers have sought to reveal the realities of primary and secondary legislative processes (e.g. Griffiths, 1974; Page, 2001), though much more research on legislative process would be welcome. Equally, the operations of accountability mechanisms themselves have been a focus of enquiry including work on the courts (e.g. Paterson, 1982), tribunals (e.g. Baldwin et alv 1992; Thomas, 2011), ombudsmen (e.g. Buck et al., 2011), administrative review schemes (e.g. Buck, 1998; Sunkin and Pick, 2001; Cowan and Halliday, 2003) and complaints systems (e.g. Mulcahy, 2003). Other empirical legal research under this heading can be understood as a response to emerging forms of governance and represent attempts to understand their operation and significance. For example, a number of UK scholars have explored the increased role of contracts within governmental operations (e.g. Davies, 2001; Vincent-Jones, 2006). Relatedly, but more broadly, the rise of the regulatory state has brought with it the rise of regulation scholarship. The study of governance through regulation is much too extensive to capture well in this chapter. Some helpful introductory and law- related texts are available (e.g. Baldwin and McCrudden, 1987; Baldwin et al., 1998; Morgan and Yeung, 2007; Harlow and Rawlings, 2009). It is sufficient to note for the purposes of this section that a great deal of this research has sought to reveal the ways in which various regulators operate (e.g. Hawkins, 1984 and 2002; Baldwin, 1995; Black, 1997; Hall et al., 2000). Comparatively much less research has sought to reveal how public bodies respond to regulation (e.g. Hood et al., 1999; Bevan and Hood, 2006).
Other research projects constitute attempts to understand and explain more general areas of government activity that have not previously been well understood. A classic example of this approach would be Daintith and Page's The Executive in the Constitution (1999). They explain the importance and value of this kind of empirical legal research:
our objection is only to reliance on values and principles to underpin a positive theory of the constitution, a theory of what it is as opposed to what it ought to be. Our preferred approach ... is to address ourselves directly to the task of finding empirical evidence of constitutional rules. In the sphere of the executive ... such rules may as often be informal, or based on established practice, as formal ... Broadly speaking, therefore, we view our task as expository of the constitution in an area hitherto little studied and leave to others the task of suggesting improvements or reforms in the light of preferred principles or values. (1999, pp. 20-1)
Daintith and Page's point is that there is a level at which questions of constitutional value are empirical rather than normative. In order to answer the question 'how does the constitution function?' rather than the question 'how should it function?', values must be discovered by observing constitutional practice. Indeed, such an approach to questions of constitutional value has a long pedigree, particularly when focusing on why constitutional values have changed over time. Much of this work is historical in nature and is a very familiar feature of public law scholarship and textbook writing. A classic example would be the account of the political struggles in seventeenth-century England and the ultimate supremacy of Parliament over the Crown. Another example would be a description of the early twentieth- century tensions between the Commons and the Lords and the enactment of the Parliament Act 1911. Historical work might also shed important light on the nature and operation of our constitutional conventions. Tomkins' analysis (2003) of the Crichel Down papers as a means of unpacking the convention of ministerial responsibility is an excellent example of this approach.
It is important to recognize that this familiar historical work is, similarly, a contribution of empirical legal research to our understanding of public law. As one historian has noted, '[h]istory is the empirical study of the past' (Trevor-Roper, 1969). Even though much of this aspect of public law scholarship relies on secondary data sources, historical constitutional work is an account of the way things were and of how and why they changed over time and is ultimately grounded in standard social scientific research methods.
The examination of government or official papers, for example, is no more than an exercise in documentary analysis or archival research, a familiar and common research technique within law and society scholarship (e.g. Friedman and Percival, 1981; Greenhouse, 1986; Rosenberg, 1991).
The affinity between historical and empirical legal research can be illustrated by comparing two recent books that have explored bills of rights (though in very different senses of that term). The first, Tomkins' Our Republican Constitution (2005), is an historical work which examines the establishment of the Bill of Rights in seventeenth-century England as part of his broader thesis about the republican nature of the British constitution. The second, Erdos' Delegating Rights Protections (2010), is a political science examination of the development of bills of rights in the Westminster world, including the enactment of the Human Rights Act 1998 in the UK. Tomkins draws heavily on historical research about the relations between the Crown, the Commons and the courts to advance his argument that, empirically, the constitutional settlement of the seventeenth century was a victory won by the House of Commons rather than the common law courts and was driven by republican ideals. Erdos, in a standard political science approach, relies on primary data collection - interviews and documentary analysis - to advance his thesis about the conditions under which bills of rights will emerge in Westminster political systems. Tomkins and Erdos are, of course, examining different periods of British history. They also have different research questions. Whereas Tomkins is looking to the past to understand what values underpinned constitutional change, Erdos has one eye to the future in terms of predicting when bills of rights are likely to emerge. But both, essentially, are in the same business of using or drawing from empirical research methods to answer their respective questions. And in both cases, their questions relate to how and why basic constitutional values have changed - the supremacy of Parliament over Crown in Tomkins' study, the protection of human rights in Erdos' study.
On a much smaller scale, other public law scholars have conducted empirical research with a view to revealing narrow aspects of public administration, such as local authority housing departments (Loveland, 1995), criminal justice social workers (Halliday et al., 2009) or the child support agency (Davis et al., 1998), and their underpinning values. This focus on what is often called 'street-level bureaucracy' (Lipsky, 1980) presents a counter-intuitive image of the implementation of law where it is generated as much, perhaps more, from the bottom up rather than the top down and where the street-level bureaucrats are as concerned with the implementation of cultural morality as they are with legal rules and principles (Halliday et al., 2008).