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.     

ADMINISTRATIVE LAW AND JUDICIAL REVIEW – THE PRACTICAL EFFECTS QF DEVELOPMENTS OVER THE LAST 25 YEARS ON ADMINISTRATION IN CENTRAL GOVERNMENT

The writer of this article served in the legal civil service from 1951–1984, mainly in the Board of Trade and its successor departments but from 1980–1984 as Treasury Solicitor. The article reflects his personal views based on this experience. Its theme is that, although access to the courts has been made easier for the citizen aggrieved by an administrative decision, and court procedure has been greatly improved, the course of administration has been less dramatically affected – in fact little, if at all, by some important earlier cases. Nevertheless the spirit of administrative law is now becoming more widely diffused, the areas which are not subject to review are becoming less and a number of specific doctrines have been developed which affect administration. The following are particularly emphasized: (1) the courts’restrictive view of the ‘Wednesbury’ doctrine and their tendency to find other grounds to overide decisions which they find objectionable or unreasonable – a tendency which causes real administrative difficulty; (2) the recently enunciated doctrine of legitimate expectation whose limits are uncertain but which may have considerable effect on administration in future; and (3) the requirement that a person affected by a policy should be given an opportunity to show that he is a special case. Finally the writer has to emphasize that his personal experience ended in August 1984 when he retired. In a large organization such as the civil service a change of ethos is slow. He is assured by some, particularly Mr John Bailey cb , his successor as Treasury Solicitor, who has read this article in draft, that he understates the degree to which concepts of administrative law are infusing the whole spirit of administration, and even more directly, the short-term effects in individual departments such as the Department of the Environment which has been the subject of long-running campaigns directed by other bodies against it through the courts.     

THE POLITICAL REVERSIBILITY OF ADMINISTRATIVE REFORM: A CASE STUDY OF THE UNITED STATES POSTAL SERVICE.

Studies of administrative reform have neglected or underestimated the tenacious nature of opposition. Vested interests first seek to obviate reform and, if unsuccessful, force reversion to the initial status quo. Such nullifying behaviour is discussed and illustrated with a case study of the incorporation of the United States Post Office Department.     

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.     

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.     

THE ROLE OF POLITICS AND INSTITUTIONS IN THE ITALIAN ADMINISTRATIVE REFORM TRAJECTORY

This article applies broad conceptual categories of comparative politics to the explanation of administrative reforms in Italy. It takes as its argument some lines of influence on public sector reform of the features of the party system in Italy, the executive‐legislative balance, the politician‐bureaucrat relationship, and the role of administrative law. In the search for explanations for the trajectory of administrative reform, pre‐existing political and institutional factors also have to be interpreted through the lens of negotiated change occurring via processes of conversion and layering involving new and old institutions that has taken place in Italy since the ‘political crisis' began in 1992.     

THE CONCEPT OF ADMINISTRATIVE ELASTICITY

ABSTRACT

The concept of administrative elasticity draws a relation between the development of administrative costs for a particular program and the development of this program's monetary volume. For the administration of agricultural export subsidies in Germany, administrative elasticities of the two offices involved were estimated separately and as a total. It showed that elasticities over a five-year period provided more reliable information than a look on short-term developments. Overall, export subsidies showed an inverse administrative elasticity, i.e., administrative costs soared while the program's monetary volume shrank. Explanations for this phenomenon were given and chances and limits of the concept of administrative elasticities were discussed.     

ADMINISTRATIVE PROFESSIONALS AND THE DIFFUSION OF INNOVATIONS: THE CASE OF CITIZEN SERVICE CENTRES

This article examines how administrative professionals affect the diffusion of one‐stop shops in the form of integrated citizen service centres (CSC) in a Danish local government setting. CSCs are an example of a new organizational form: functionally integrated small units (FISUs). The diffusion of the CSCs among municipalities is used to analyse how administrative professionals act as drivers in the process of organizational level innovation. Furthermore, it is examined how institutional, political and economic characteristics of municipalities influence the likelihood of adoption. The findings highlight that a high concentration of administrative professionals indeed make the adoption of CSCs more likely. Additionally, the findings confirm three commonly stated hypotheses from the diffusion of innovations literature, namely that need based demands, wealth and the regional supply of CSC increase the likelihood of its adoption.     

COMPETING TRADITIONS OF GOVERNANCE AND DILEMMAS OF ADMINISTRATIVE ACCOUNTABILITY: THE CASE OF DENMARK

This article offers a study of the changing role of the state in Denmark under the condition of the overall transformation from government to governance with particular emphasis on the corresponding transition from process accountability to performance accountability. It is argued that although new modes of governance have been introduced, and new interpretations of accountability have been proliferated, neither conventional modes of governance nor older interpretations of accountability disappear. Thus, what we see is a co-existence of competing traditions of governance and different and sometimes contradictory interpretations of administrative accountability, which create potential dilemmas and contradictions for the individual civil servant. Employing an interpretative approach to governance and public administration, the article analyses the constitution of competing traditions of governance and interpretations of accountability, and the way in which these competing traditions and interpretations lead to accountability dilemmas for the individual civil servant.     

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.     

ADMINISTRATIVE REORGANIZATION AND POLICY CHANGE: THE CASE OF HER MAJESTY'S INSPECTORATE OF POLLUTION

Environmental protection nowadays is a major issue of policy and administration. It is well recognized that an effective approach to pollution control requires it to be integrated, but UK governments have been slow to respond to this need. The creation of a new unified pollution inspectorate in England and Wales must be set in the context of a general transition in British pollution control practice, where the incorporation of more formal procedures is taking place within a tradition of emitter self-policing, client-regulator mutual respect, and regulatory adaptability. This article examines the circumstances that led to the formation of the new pollution inspectorate and considers the challenges that it faces.     

PUBLIC VALUE AND POLITICAL ASTUTENESS IN THE WORK OF PUBLIC MANAGERS: THE ART OF THE POSSIBLE

The public value framework, with its call for more entrepreneurial activities by public managers, has attracted concern and criticism about its implicit breaching of the politics/administration dichotomy. This article explores the role of political astuteness not only in discerning and creating public value, but also in enabling public managers to be sensitive to the dichotomy. We employ a conceptual framework to identify the skills of political astuteness, and then articulate these in relation to identifying and generating public value. Drawing on a survey of 1,012 public managers in Australia, New Zealand, and the UK, and in‐depth interviews with 42 of them, we examine the perceptions and capabilities of public managers in producing value for the public while traversing the line (or zone) between politics and administration. We conclude that political astuteness is essential to both creating value and maintaining allegiance to democratic principles.     

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'.     

DEMOCRATIC GOVERNANCE AND POLITICAL RATIONALITIES IN THE IMPLEMENTATION OF THE WATER FRAMEWORK DIRECTIVE IN THE NETHERLANDS

Multi‐level governance, network governance, and, more recently, experimentalist governance are important analytical frameworks through which to understand democratic governance in the EU. However, these analytical frameworks carry normative assumptions that build on functionalist roots and undervalue political dynamics. This can result in a lack of understanding of the challenges that democratic governance faces in practice. This article proposes the analysis of democratic governance from the perspective of multiple political rationalities to correct such assumptions. It analyses the implementation of the Water Framework Directive in the Netherlands as a paradigmatic case study by showing how governmental, instrumental, and deliberative rationalities are at work in each of the governance elements that it introduces. The article concludes by discussing the implications of a perspective of multiple political rationalities for the understanding and promotion of democratic governance in practice.     

THE IMPACT OF OPEN DATA IN THE UK: COMPLEX,UNPREDICTABLE, AND POLITICAL

This article examines the democratic impact of the UK coalition government's Transparency Agenda, focusing on the publication of all local government spending over £500 by councils in England. It looks at whether the new data have driven increased democratic accountability, public participation, and information transmission. The evidence suggests that the local government spending data have driven some accountability. However, rather than forging new ‘performance regimes’, creating ‘armchair auditors’, or bringing mass use and involvement, the publication creates a further element of political disruption. Assessment of the use and impact of the new spending data finds it is more complex, more unpredictable, and more political than the rhetoric around Open Data indicates. The danger is that the gap between aims and impact invites disappointment from supporters.     

SITUATING ADMINISTRATIVE RESPONSIBILITY: A COMPARISON OF MEDIEVAL CHRISTIAN AND MEDIEVAL ISLAMIC ADMINISTRATIVE THOUGHT

Contemporary studies of administrative thought allow only a limited range of viability for medieval and non‐Western thought on the subject of public administration. This tendency belies the wealth of thought embedded within this broad literature. This paper investigates the matter of administrative accountability and responsibility through the lens of a comparative theorist of historical administrative thought. In order to assess the explanatory potential of early and non‐Western administrative studies, two texts have been chosen, both previously unanalysed in conjunction (to the best of my knowledge) from the perspective of the administrative theorist – John of Salisbury’s Policraticus and Abu al‐Hassan Al‐Mawardi’s Al‐Akham al‐Sultaniyya w’al‐Wilayat al Diniyya (The Ordinances of Government). Through an analysis of ideas of delegation and responsibility within these texts, the paper seeks to develop a critique of the place of revealed religious authority in the solution to the questions ‘who are administrators responsible to?’ and ‘what are administrators responsible for?’     

POLITICAL ACCOUNTABILITY AND PERFORMANCE AUDIT: THE CASE OF THE AUDITOR GENERAL IN NORWAY

Performance audit is widely used in public administration, but, at present, little empirical evidence exists on its usefulness and contribution to accountability. Based on survey data from 353 civil servants in Norway, this article analyzes the auditees' perceptions of the audit. Performance audit was seen as useful by a majority of the auditees. If auditees agreed to audit criteria and assessments, were allowed to influence the process, had favourable opinions of the reports, and believed that the State Audit Institution contributed to accountability and improvement, then they regarded it as useful. Reports used for accountability purposes were not perceived as less useful. The auditees' administrative level, the use of the report to further interests, and attention from politicians, the media, and the Parliament impacted on the accountability dimension. These results indicate that performance audit can influence civil servants, but the influence is contingent on how the audited civil servants perceive the performance audit.