Legitimacy and the administration of the airwaves auctions

This article is about the challenge of administrative legitimacy in the United Kingdom’s economic constitution, particularly the situation post-Brexit. In view of excitement around the fifth generation of mobile technology (5G), the article considers the economic constitution in the context of legal and policy developments concerning how radio waves are allocated to such technology. It identifies a transactional governance regime, the core value of which is efficiency, and the centrepiece instrument is the auction. Looking to Fisher’s work on administrative constitutionalism, the article argues that, in this regime, technocratic and compartmentalised policymaking result from the pursuit of rational-instrumental legitimacy. Increasing complexity has undermined claims to rational-instrumental legitimacy, and the transactional regime is giving way to something else. An emergent post-Brexit regime presents scope for governing arrangements that are responsive to consumer and citizen interests, and the article concludes with what needs to happen to realise this.