#16115 - Administrative Law Theory - Administrative Law

Administrative Law Theory

• Definition of government made uncertain by:

  • Executive agencies

  • Contracting-out

  • Privatization

  • Private financing of public projects

• Increase of executive power in the legislature and increase in the areas over which government accepted responsibility are intimately connected, as the government had to deliver its promises which led to centralization of legislative initiative in the government, and to a tighter party system

• Scrutiny of government policy: departmental select committees

• Central debate: should administrative functions be performed within departments of government or be delegated to agencies? (Accountability problems of reducing the size of the central civil service and increasing agencies)

• Agencies existed in 19C but were internalized in government in the 20C because Parliament wanted accountability with direct ministerial responsibility

• Latter half of 20C saw changes as public bodies outside of the government grew – usually divided between Executive Agencies and NDPBs (Non-Departmental Public Bodies)

• Executive agencies:

  • Part of the Crown

  • No separate legal identity; have powers delegated from ministers/departments

  • No statutory foundation

  • Have a Chief Executive who reports to the minister

  • Receive funding from department

  • Functions set out in Framework documents

• NDPBs – various kinds, most important are Executive NDPBs

  • Have separate legal identity

  • Normally statutorily based, occasionally prerogative based

  • No Crown status

  • Legislation states powers/functions

• These bodies pose challenges on accountability, control, effectiveness and appointments

• Introduction

  • 19C – development of local authorities

  • Among the principal decision-makers in public law

  • Powers have transformed – no longer able to define local government by reference to present pattern of local authorities and their powers

  • Traditional responsibilities transferred to agencies or contracted out

• Structure

  • History

    • Unchanged until 1972, though disquiet rose after WWII as the system was thought to be outdated with regards to technological development – report of the Royal Commission identified problems:

      • Division between town and country

      • Division between boroughs and counties

      • Allocation of responsibility within counties

      • Small size of local authorities

      • Relationship between local authority and the public

      • Relationship between local authority and government

    • Royal Commission response (Radcliffe-Maud proposals): changed traditional thinking – in the past, single-tier systems governed large urban areas and two-tier systems governed the rest. Change meant that unitary structure should be the norm

    • Labour accepted unitary concept, but Conservative rejected it – its rise to power in 1970 led to reversion to two-tier principle, enacted as the Local Government Act 1972

    • Traditionally 4 types of local government

      • Metropolitan county, divided into metropolitan districts and then parishes

      • Non-metropolitan counties, divided into districts and then parishes

      • London: Greater London Council, divided into London boroughs

      • Wales: 8 counties, 37 districts, communities

  • Conservative Government reforms:

    • Metropolitan county councils and Greater London Council abolished (LGA 1985)

      • Limited operational responsibilities

      • Excessive expenditure

      • Not required

      • Reform ‘streamlines’ cities, saves money, provides a simple system

    • Currently structures vary – some unitary, some two- or three-tier; investigations have been conducted regarding whether a unitary system would be better

• Internal Organization

  • Traditional structure of councils was “inefficient and opaque”

    • significant decisions kept secret by small group within majority

    • Councilors ineffective because of too many meetings though decisions had already been made elsewhere

    • Lacked leadership – people didn’t know who made deicsions

  • LGA 2000

    • Remedy: separate roles between executive and backbench councilors

      • Executive proposes policy framework and implements policies within agreed framework

      • Backbench represent constituents

    • Executive options:

      • Directly elected mayor plus cabinet formed from councilors, where the mayor is the entire executive

      • Leader and cabinet executive

      • Local authority executive that takes a form prescribed by the secretary of state

    • Scrutiny committees review executive decisions and can summon executive members to answer questions

• Functions and Powers

  • Modern role originates in problems with industrialization/urbanization in 19C which necessitated public action to provide goods/services that the market fails to provide adequately (risk of monopoly, need for redistribution…)

  • Then came decline in need for trade and increase in importance of redistribution

  • Then came Conservative Policy 1970s-90s – functions should be opened up to market forces and judged on market efficiency (individualistic principles > greater good)

    • LGA 1988 made local authorities put certain services into competitive tendering (council houses, schooling, privatization…)

  • Then came Labour Policy 1990s – 2000s – accepted that service provisions should be the “most effective, economic and efficient means available” but acknowledged that the market wasn’t always the best solution so left local authorities more choice (Best Value Policy – LGA 1999)

    • Policy emphasizes equality and efficiency; no assumption of privatization/compulsion to tender

  • Then came Coalition policy 2010 – gives local authorities a general competence to act like individuals do (subject to limitations) and allows ministers to transfer functions from central government to local authorities, thereby empowering local authorities (Localism Act 2011)

    • Also empowers individuals against local authorities – obliges authorities to consider expressions of interest relating to service provisions

• Agencies

  • Conservative changes, increase of contracting- out etc. agencies

  • This led to change of focus from local government to local governance (encompassing the idea that services are provided by a range of bodies beyond local authorities)

• Central-Local relations and democracy (aka how much influence should central governments have on local authorities?)

  • Utilitarians – agency view: prime consideration is efficiency with a presumption of uniformity (strong central government with only necessary delegation to local authorities)

    • Equality and pragmatism – benefits/services shouldn’t depend on where you live; this equality depends on a strong central authority

    • Examples: Poor Laws, public health, powers to local authoirites diminished if central can administer it better

  • Opposition to agency view:

    • Traditional Victorian sentimentality

    • Local authorities are accountable both to electorate (downwards) and to the government (upwards) which is better for democracy

• Reforms:

  • Trivunals and Inquiries Act 1958

  • Tribunals, Courts and Enforcement Act 2007 (creates a First-tier Tribunal and Upper Tribunal to which most central tribunal work was conferred)

  • Inquiries Act 2005 (rules governing inquiries reflects different ideologies concerning the purpose of legal regulation in this area)

• Rationale for creation:

  • Tribunals are preferred to courts (speed, cheapness, informality, expertise)

  • Ordinary courts are less sympathetic to the protection of substantive interests in legislation that founded the welfare state

  • Tribunals are a symbolic means of giving the appearance of equality in areas so as to facilitate unpopular change

• Nature of tribunals are not well defined – some elements are the following but very few possess all:

  • Ability to make final, legally enforceable decisions (subject to review and appeal)

  • Indepdndence from government departments

  • Public hearings of a judicial nature

  • Possession of expertise

  • Requirement to give reasons

  • Provision of appeal to High Court

• Introduction

  • Much debate on the issue

    • Description/prescription difficult to separate

    • Control of government power vs. effective function of administration vs. government accountability vs. participation by more interested parties

  • Legislature and courts important in determining nature and shape of admin law

    • Legislature enacts policies directly constitutive of administrative state

    • Courts decide purpose of judicial review and constraints to impose on legislature

• Dicey’s unitary democracy and ultra vires principle

  • Unitary democracy (democrary is unitary in that all public power is channeled through parliament)

    • Parliamentary sovereignty involves a second limb – parliamentary monopoly: all government power should be chanelled through Parliament for legitimation and oversight

    • This democratic system is self-correcting (Commons reflects the will of the people and controls the executive)

  • Ultra vires principle (people don’t have powers unless Parliament conferred them)

    • Parliamentary monopoly necessitates judicial review to police its boundaries because Parliament can confer powers on Ministers but someone has to make sure they don’t transgress these powers

    • Origins of judicial review wasn’t to serve this end – it was to assert superiority of the High Court over ‘inferior jurisdictions’ and to give remedies to unjustly treated people: thus there was much room for conflict with legislative will

    • 19C evolution of role of...