Administrative Law, the Administrative State and Administrative Remedies

This lecture seeks to:

(1) answer the question: what is the administrative state?

(2) provides an introduction to the structural form that the administrative state with the objective of assesing how the present configuration of the state has affected the process of administration;

(3) Outline the development of administrative law remedies.

• Leading scholars (Harlow and Rawlings) have analysed these developments in terms of two conflicting trends:

• Red light view - originating from Dicey’s notion of the rule of law which emphasizes a control function, often exercised by the courts.

• Green light or functionalist view - which places great emphasis on using the positive values of law as a facilitator e.g. planning.

Brief history

• Municipalisation - introduction of layers of elected local government - Municipal Corporations Act 1835

• State provision of services - emergence of modern civil service post Northcote Trevellyan reforms

• HMI - control by inspection e.g. prisons and schools• Delegated legislation conferring discretionary powers

on officials• Nationalisation - many industries, e.g. public utilities

and rail, placed under state ownership

Transformation of the administrative state from 1979

• From welfare state to contract state

• Agencification of civil service

• Privatisation of nationalised industries but with a scheme of statutory regulation

• Public/private partnerships

• The three E's: economy, efficiency and effectiveness but not ‘quality’ of service

• New public management (NPM)• Accounting by conducting value for money

audits (VFM)• Target setting and target reaching - based on

the idea of measurable performance becomes a priority for government, local government and all public sector organisations.

• Contracting state and the public choice model of administration -

• contracting state has a double entendre (double meaning) - the state uses the device of contract to reach policy objectives - the state contracts (in size) because the private sector often delivers policy.

• Contracting out to private sector with the parameters of service determined in the contract

• Private law model increasingly relevant to public sector as services are contracted out.

Bonfire of the Quangos

• Quasi-autonomonous non-governmental organisations (non-departmental government bodies) – these are bodies funded by central government but not run by civil servants. Often used in an advisory capacity.

• In May 2010 there were 679 such bodies. The government announced in October 2010 that 192 would be axed including: the Audit Commission, the Film Council, Youth Justice Board for England and Wales, British Nuclear Fuels, General Teaching Concil for England and Wales, Human Fertilisation and Embryology Authority, Teenage Pregnancy Independent Advisory Group. A further 118 of such bodies will be merged.

• Justified on the grounds that it will provide enhanced accountability by having more decisions taken by central or local government directly.

Remedies in Administrative Law

* Some have been built into the system and thus fulfil a ‘green light’ or ‘functionalist’ role e.g. tribunals.

* Ombudsmen have increasingly developed as a

response to particular problems in administration. * Informal methods of grievance resolution operate alongside formal methods.

* Not all grievance mechanisms have the power to impose a remedy.

Grievance chain

• ADR including mediation, citizens charter concept, arbitration/conciliation

• Parliament - oversight by MPs, departmental select committees, Public Accounts Committee and National Audit office

• Ombudsmen, parliamentary, local government etc. • Tribunals - classic green light remedy with intra vires

appellate mechanisms• Judicial review - particularly important check on the

exercise of discretionary powers of government but last resort

The Ombudsman Principle

• PO runs alongside MPs• MP filter so as not undermine MPs• Maladministration focus of investigations• Systemic failings an increasing concern• New emphasis on ‘good administration’ entrenching values for

administrators• Only recommends remedies but publishes findings and reports

before Parliament• Financial Services Ombudsman exceptionally can award

remedies

Citizens Charter

• Wide application throughout public sector • linked to ‘New Public Management’ setting standards

and targets• Also linked to contracting between public and private

bodies• Publication of target/greater transparency• Citizen treated as customer• Joined up government• Is this really a remedy at all?• Re-badged charters as Service First/Chartermark

Tribunals: workload

• Asylum and Immigration Tribunal - 173,000 cases p.a.• Criminal Injuries Compensation Panel - 3,700 cases p.a.• Employment Tribunal Service - 89,000 cases p.a.• Employment Appeals Tribunal - 1100 cases pa• Mental Health Review - 22,000 cases p.a.• Social Security and Child Support Appeals - 250,000 cases p.a.

Courts and tribunals compared

• Inquisitorial rather than adversarial approach

• Specialised jurisdictions

• A need to encourage applicants

• accessibility, speed, informality and economy

• More flexible approach to problem solving

• Not strictly bound by precedent

Recent reform following the Leggatt

Report • Clear separation between minister and authorities

whose decisions tested by tribunal• Restructuring of tribunal network• New training scheme - competence based approach• Single route of appeal• Promoting best practice with charter for users and

enhanced standards of service• Tribunal judges able to service more than a single

sector

Latest trends in tribunals

• Single system - compare to Conseil D’Etat and system of administrative courts.

• Emphasis on good administration as with the Parliamentary Ombudsman.

• Human Rights Act 1998 requires procedural norms• Establishing lines of communication between

tribunals and the relevant department, link severed to achieve independence.

• Proportionate dispute resolution (PDR) tailored solutions rather than general expectation of oral hearing.

Planning: Case study

• Parent Act: Town and Country Planning Act 1947• Uniform system of control applying to all development

with ministerial involvement at policy level, handed down to local planning bodies

• Citizen applies locally for permission the proposal must conform with the scheme set by the authority and approved by the minister

• Central government (independent) inspectorate has appellate function

• Scheme closed off from the courts, unless planning authority or minister acting outside the terms of the act, then judicial review available.

Conclusion

• Administrative state a complex mix of public and private

• Wide range of remedies have been introduced that work at different levels

• Tendency towards co-ordination and systematisation• Recent emphasis on developing positive ‘principles of

good administration’• Judicial review always regarded as a remedy of last

resort.