JUDICIAL REVIEW AND THE 'CONTROL OF GOVERNMENT'

Administrative law is traditionally said to be concerned with the 'control of government', and judicial review of administrative action is said to be the primary mechanism of 'control'. It is argued that judicial review fails in any significant sense to control central government. Explanations for this include the ability of the executive, acting through the legislature it controls, to reverse or nullify judicial decisions: the characteristics of the civil service which, in the absence of any significant legal training as a condition of employment, tend not to be aware of the significance of administrative law principles; and the imprecision of those principles, which make them inadequate as a guide to determine administrative processes. If administrative lawyers do in fact seek to establish control over central government, some at least of those problems must be faced, perhaps by the creation of a body of principles of administration.     

JUDICIAL REVIEW: A WAY OF CONTROLLING GOVERNMENT?

Recent concern among administrators about the effect of judicial review on their work is exaggerated. The cases show that judges are aware of the pitfalls of too much judicial intervention. Judges do not control government. To understand their role, we must distinguish three different judicial techniques (here called directing, limiting and structuring) which are usually conflated under the title of 'control'. In doing their jobs, judges generate principles to guide administrative procedures and judge their legality. That can make a useful contribution to structuring administrative decision-making, but only if the civil service is as sensitive to the potential value of judicial review as judges are to its possible dangers.     

PUBLIC LAWYERS AND PUBLIC ADMINISTRATORS: PROSPECTS FOR AN ALLIANCE?

There is in Britain a longstanding gulf between the study and practice of public administration on the one hand, and the study and practice of public law on the other. This state of affairs contrasts sharply with the situation in many other countries of Western Europe, where public administration is underpinned by well-developed systems of administrative law. Recent procedural and substantive developments in the field of judicial review of administrative action, together with intensification of debate about constitutional issues, such as the desirability of enacting a new Bill of Rights, have increased the urgency of improving communications and collaboration between these two cognate areas of activity. The burgeoning literature of public law, and the law reports of cases in this subject-area, constitute a potentially invaluable quarry of source-material for students of British public administration.     

REFLECTIONS ON THE TRUE SIGNIFICANCE OF THE SCOTT REPORT FOR GOVERNMENT ACCOUNTABILITY

The immediate impact of the Scott report was slight because it had no conclusion and led to no ministerial or other resignations. Reasons for this inconclusiveness were examined, including conventions of the judicial process, the difficulty Scott had in defining the offences he was examining, the slipperiness of those offences as constitutional conventions and Scott's lack of grasp of administrative processes.
Yet his report is a mine of information on problems of accountability in the area of government defence sales. It was atypical in that three departments pursuing four policies between them and with another department as policeman had a locus in the process. Given the nearly 100,000 licences being processed at one time, it was a large, complex and fragmented administrative activity which might easily have resulted in more mishaps than it did.
Despite its special features the author argues that it does provide evidence of six areas of difficulty in government accountability which are also of (growing) relevance outside the area Scott surveyed: how one finds who is responsible for policy and policy change; how accountability is secured where confidentiality is justified for national security or other reasons; how one gets operational accountability for executive operations within departments; the accountability of junior to departmental ministers; of junior to more senior civil servants; and of civil servants to ministers.     

Constrained, pragmatic pro-democratic appraising constitutional review courts in post-Soviet politics

This paper conceptualizes the behavior of higher courts in the politics of former Soviet republics and attempts to set up a framework for the study of democratic contributions by post-Soviet constitutional courts. Although political expediency is noted to be the central driving force behind the judges’ decisions in politically sensitive cases, as courts are subject to different constraints from quasi-autocratic executives, it is argued that constitutional review tribunals are generally pro-democratic in their political orientation and that they can become the allies of pro-democratic parties in transitional periods of elite change. To support this proposition, this paper proceeds from a series of theoretical arguments to empirical observation of judicial behavior in times of political uncertainty, the latter being a perfect test for probing the political orientation of the courts.     

Current challenges of the mexican state and of mexican public administration

This article deals with the problems that the Mexican government will need to face in order to go on with the reform of the state. The cycle of such a reform (privatization, liberalization and democratization) is already closing down. While ending this process, however, Mexico also started to see an increasing number of demands calling for administrative reform and, above all, the federalization of government and public administration. This is what the author calls the strategic agenda of the Mexican government.

In order to implement the administrative reform, the author favors enhancing the accountability of the Mexican government, by increasing public participation in the policy and decision making processes. With regard to the federalization of government and public administration, Aguilar proposes the implementation of policy tools never used in Mexico, such as fiscal federalism (categorical and block grants, for instance), together with new constitutional, political and administrative arrangements.     

DECISION-MAKING IN CENTRAL AND LOCAL GOVERNMENT IN THE ABSENCE OF POLITICAL MAJORITY

A possible outcome of the next general election is that no party will have a majority in the House of Commons, a situation experienced only briefly in recent central government. In local government, by contrast, more than half the county councils in England and Wales and many district councils have no overall political majority. Some have been so for many years. This paper examines the style of decision-making in one such local authority, Cheshire County Council, in terms of the roles of politicians and officials and the relationship between them. Recognizing the constitutional differences between central and local government, it goes on to discuss how much of this experience would be relevant to central government in the event of no overall parliamentary majority. The paper argues that many of the working practices developed in local authorities would be valid in a central government context, though they would not necessarily take the same form. To avoid value judgments, the absence of overall majority, whether in a local authority or in parliament, is referred to simply as 'no-majority'.     

AUSTRALIAN ADMINISTRATIVE LAW: INSTITUTIONS, REFORMS AND IMPACT

Over the last decade the Australian Government has enacted a package of legislative reforms dealing with administrative law, some aspects of which are radical and innovative. The reforms comprise the establishment of a general appeals tribunal to review certain administrative decisions on their merits, the appointment of a Commonwealth ombudsman, changes to the procedures and principles concerning judicial review of administrative action, the enactment of freedom of information legislation and the creation of an advisory body to monitor the new system of administrative law. The key features of these reforms are described in this article and some general observations are also made on the impact that the reforms have had on federal public administration.     

Public administration,executive power,and constitutional confusion

This article examines the ambiguity in the meaning of executive power in both the text of the U.S. Constitution and in subsequent judicial interpretations. This ambiguity has had a profound impact on the constitutional position of the public administration. In the recent independent counsel case, the U.S. Supreme Court offered a restrictive interpretation of the President's constitutional powers to remove subordinate officers. This new interpretation could lead to increased congressional control over administrative agencies.

The proper place and function of the public administration, unfortunately for the public administration, have been and remain inherently ambiguous because of the longstanding confusion about executive power in the Constitution of the United States. Richard Neustadt captured this ambiguity nicely when he noted that the two great themes that have characterized the American presidency have been “clerkship” and “leadership.”⁽¹⁾ There is no easy formula to bring clerks and leaders together to make them march in lock-step, and yet the President is clearly both. Today we may tend to emphasize his role as leader with imperial pretensions and Nixonian excesses still relatively fresh in our memories, but this is only a question of emphasis. No one denies that the President is a legally accountable officer who must do the bidding of the Congress. This is the clerkship side of the presidency.

Herbert Storing counsels against any effort to cut the Gordian knot and to try to determine once and for all just what it is our President is supposed to be: clerk or leader. “The beginning of wisdom about the American presidency,” Storing maintains, “is to see that it contains both principles and to reflect on their complex and subtle relation.”⁽²⁾ Following Storing's advice, this essay reflects on the inherent ambiguity of the executive power that provides the constitutional foundation of the public administration. First, we examine the text of the Constitution and the meaning of executive power at the time of the founding. Then we study the confusion that the Supreme Court has created in its efforts to draw practical conclusions for presidential personnel management from the constitutional grant of “the executive power” to the President in relation to the removal power. Third, we examine some of the recent problems of executive power that surfaced in Watergate and became salient in the important constitutional debate over the special prosecutors, those most unwelcome intruders into the inner precincts of the Reagan administration.     

CHANGES IN JUDICIAL REVIEW: AN OUTSIDER'S REFLECTIONS

Public Administration has asked me to comment on the articles discussing recent developments in judicial review contained in this special issue. This is a most generous invitation, for which I would like to thank the editors, in particular Professor Michael Lee. This is a daunting task too. Before I attempt it, I wish to say that the following are the comments of an outside and foreign observer who had recently the opportunity to study the English legal system.
I propose to consider the questions raised in three parts; firstly, the manner in which the recent reforms have been introduced and their likely consequences; secondly, the practical effects of judicial review on the administration; and thirdly, the cultural, social and political factors that influence the shape and role of administrative law.     

USING BUREAUCRACY SPARINGLY

'Using bureaucracy sparingly' (UBS) is a well-known and traditional canon of good public administration — but one that has a number of meanings which are not wholly compatible with one another. Looking at the interface between government administration and the outside public (rather than at the internal operations of government bureaux), this essay identifies three rather different senses of UBS, all of which are in common currency. The implications of two of these are then explored, in terms of the kinds of preferences they imply for the use of government's administrative instruments. Finally, there is a brief discussion of what the different senses of UBS have in common and of the extent to which they have divergent implications, posing dilemmas for those who might wish to 'use bureaucracy sparingly'.     

DEVOLVED RESPONSIBILITY AND CENTRALIZATION: EFFECTS OF EEC ENVIRONMENTAL POLICY

The European Community is still a community of nation states in the sense that the obligations created by Community legislation fall on the member states who then have to implement them.
A point much commented upon is that this involves a loss of sovereignty or power for national parliaments and governments. What is less frequently noticed is that it can also centralize into a national government's hands some powers that had previously been devolved to local and other authorities. Since the Community deals largely with national governments, what had previously been local functions have to become national government functions the moment they fall within a Community policy.
This process can be seen at work as a result of the Community's environmental policy. In Britain a variety of administrative agencies have exercised considerable discretion in handling pollution matters. Some functions are handled by district councils, some by county councils, some by specialized regional authorities, eg water authorities, and some by specialized national agencies, eg the Industrial Air Pollution Inspectorate. As a result of the Community's environmental policy, the central government now has greater powers. If the erosion of the tradition of devolved responsibility is not to be resented, it must be justified on the grounds that some larger purpose is being served.     

Reputation reform strategies in local government: investigating Denmark and Norway

This article investigates reputation reform in Norwegian and Danish local government and whether they have the same strategy content depending on the degree of administrative involvement and municipality size. Political and administrative actors are likely to cultivate different types of reputation strategies (place or organisational reputation), which explicitly embrace the potentially diverging interests cultivated by the two types of actors. We use a comparative design and quantitative method with an empirical ambition to explore local government reputation strategies in two national contexts. We find that local government responses to reputation reform depend on the size of the municipality and the type of actors involved; the larger the municipality, the more the administration is involved. And the more that administrative actors are involved, the more the strategies target organisational reputation. The country-specific factors do not appear to be the most important determinants for reputation reform strategies.     

TOWARDS A BETTER PUBLIC LAW?

In the UK Constitution, the major weapon of judicial control over the exercise of governmental power is provided by the action for judicial review. This action serves to keep public bodies within the scope of the powers conferred on them by law. Prior to the present Law Commission inquiry into procedural aspects of judicial review, the matter was last examined in 1977 since when there have been significant changes in the ways in which governmental power is exercised and controlled. This article takes as its focus the Law Commission's Report No.226 Judicial Review and Statutory Appeals and examines specific proposals contained therein arguing that, underlying the reforms, there exists no coherent vision of the future role of public law. Instead, what is revealed is a confused cocktail of measures in which the tension between the legitimate needs of public administration and the opposing requirement that government act according to law remains unacknowledged and thereby unresolved. There is, moreover, a disappointing failure to evaluate the experience of public law procedures found in other jurisdictions. In response to these perceived deficiencies, the authors set out an alternative and principled account of judicial review, the central feature of which is to ensure that public power is subjected to an appropriate degree of judicial scrutiny. This alternative account is later used to inform arguments about specific reforms. In this regard, the valuable experience of other jurisdictions'public law procedures is also drawn upon.     

REGIONAL GOVERNANCE IN ENGLAND: A CHANGING ROLE FOR THE GOVERNMENT’S REGIONAL OFFICES?

Debates about the appropriate territorial scales of government to meet the challenges of economic, political and social change have gained momentum in Western Europe in recent years. In the UK, political mobilization has transformed constitutional arrangements in Northern Ireland, Scotland and Wales. By contrast, in the English regions, a less radical approach has been adopted, but the outcome has been a strengthening of the institutions of regional governance. A key feature has been the enhanced responsibilities of the Government Offices for the Regions, which have been encouraged to build on their traditional administrative functions and adopt a more strategic role. This article explores the Offices’ contribution to regional and local governance. Our central argument is that although increasingly expected to act as a bridgehead between national and sub‐national government and a focus for regional policy coordination, their potential role in filling the missing gap in English regional governance has not yet been fully grasped.     

JUDICIAL REVIEW OF ADMINISTRIATIVE DECISIONS – A BACKGROUND PAPER

Judicial review is now the normal route for anyone seeking to challenge an administrative decision, unless there is a separate statutory right of appeal as for example in town planning matters. Grounds for challenge have been variously described by the courts but include (a) that the decision was wrong in law, (b) that it was unreasonable or irrational and (c) that there was procedural unfairness. Those who seek review must understand that the court will not substitute its own view for that of the decision taker. The adequacy of the remedy of judicial review has been challenged by some on the grounds that leave to proceed has to be sought from the court within three months. There is too the difficulty in some cases of establishing that the plaintiff has a sufficient interest to sue. Whilst it is too early to talk of a distinct body of public as opposed to private law, recent decisions have widened the concept of public law and have interpreted the circumstances in which a private right may be pursued against a public authority.     

NEW FORMS OF ADMINISTRATIVE LAW IN THE AGE OF THIRD‐PARTY GOVERNMENT

This article explores the democratic values underlying public services when they are outsourced. Building on Rosenbloom and Piotrowski's (2005a, 2005b) framework, we examine whether and how administrative law norms – that serve as central democratic governance and accountability mechanisms in the administrative state – are extended to the new (private) frontline service providers. Through a study of the regulation of the privatized welfare‐to‐work programme in Wisconsin, we find that new forms of administrative law are evolving in third‐party government. These forms differ from administrative law as it usually applies to public agencies in several important aspects. The findings highlight the active role of legislative and administrative mechanisms in the promotion of these new forms of administrative law; and they shed light on the transformations that administrative law norms undergo in the age of third‐party government.     

Judicious choices: designing courts in post-communist politics

One area which has been generally overlooked in the literature on institutional choice in post communist politics has been the design of judicial institutions. This paper seeks to evaluate a number of different explanations for judicial systems choice in post communist politics, especially those which emphasize the influence of socio-cultural factors, economic factors, the judicial legacies of the past, and political bargaining. As an empirical test of these explanations, we examine variations in the amount of judicial power that constitution makers granted to the constitutional courts in the countries of the former Soviet Union, Mongolia, and Eastern Europe.     

Subnational Lobbying and Structural Funds: A French–Scottish Comparison

This article examines subnational actors’ engagement with the European Union's structural funds, and whether these actors are significant in this policy sector. It examines this question by comparing one French regional council with one set of Scottish local authorities. It concludes that there are considerable similarities between the subnational actors studied, in spite of differences in their location and the constitutional structure within which they are located. The subnational actors have unilaterally developed a capacity for engaging in the policy sector. In both cases, however, this engagement is not evidence of a ‘by-passing’ of the central government. Instead, the subnational authorities have worked alongside central government departments to achieve their goals.     

Introduction

Italy is facing the difficulties and the challenges created by the current worldwide transformation of the economy, of government and civil society by crafting appropriate government policies and actions as well as adjusting organizational structures and procedures. This special issue shows a picture of a country undergoing a profound process of change at all levels of governments and main areas of public policy. The predominant features are the promotion of private enterprise and decentralization, while administrative reforms encourage the formation of a new administrative culture where the traditional centrality of administrative law no longer exists and public administration becomes more open and managerially oriented.