Administrative Law, the Administrative State and Administrative

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
• 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
• 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
• 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
• Private law model increasingly relevant to
public sector as services are contracted out.
Bonfire of the Quangos
• Quasi-autonomonous non-governmental organisations (nondepartmental 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,
• 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
• Only recommends remedies but publishes findings and reports
before Parliament
• Financial Services Ombudsman exceptionally can award
Citizens Charter
• Wide application throughout public sector
• linked to ‘New Public Management’ setting standards
and targets
• Also linked to contracting between public and private
• 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
• 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
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
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.
• Administrative state a complex mix of public and
• 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