College aantekeningen
Administrative Law Notes
- Instelling
- Tilburg University (UVT)
These notes are for the course of administrative law. They cover all modules and using these notes I received a 7.5 in the course.
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Alba Kalayci Nicault2036559
Administrative Law
Week 1: Introduction to Administrative Law
A few characteristics of administrative law
- Public administration → a body distinct from the rest of society that pursues
different goals and must adhere to certain standards of conduct
- Rules and remedies (checks and balances) regarding public activities
o Subjective model v objective model
▪ Legality, procedural, obligations > rights v legitimate expectation,
rights > obligations
o Red light v green light theory
▪ Citizen rights, law as brake, ‘anti’ state v law as vehicle for process,
‘pro’ state
- Constant tension: ‘for’ and ‘against’ the administration
- Flexible scope → admin law evolves depending on:
o Societal and economic changes
o Constitutional / institutional structure
- Administrative law as (hidden) behavioural law, or getting those working for the
administration to behave in a way the constitutional framework demands
Red-light and green-light theories:
- Red-light theory: emphasis on citizens’ rights and law as a brake on state action
- Green-light theory: administrative law as a vehicle for political progress and
welcomes the administrative state
- A.V. Dicey:
o ‘Balanced’ constitution in which the executive, envisaged as capable or
arbitrary encroachment on the rights of individual citizens, will be subject by
Parliament on one side and to legal control through the common law (courts)
on the other side
o Dicey’s preference was for a unitary court structure, in which administrative
cases are handled by ordinary courts and judges and public officials stand on
an equal footing with private persons
- GCHQ case (1985):
o Thatcher’s government had decided that GCHQ employees were prohibited
from joining a trade union based on a potential threat to national security -
enforced by an order of council which is a royal prerogative
o The court found that where a person’s ‘private rights or legitimate
expectations’ are affected by the execution of the royal prerogative, then
that execution of power should be amenable to review
o Departure from the unwillingness of the courts to judicially review
prerogative powers
o Influence in the UK of new deal/welfarism in the US/Europe (‘the
administrative state’) and a growing belief in a collectivist state whose
, function was to secure the provision of public services. Regulation and rules
are a more important function of administrative law than the adjudication of
disputes
o ‘Red-light perspective’ still important → ‘forever amber’
Bignami Article
- Development of administrative law since the 19th century is related to the rise of
large state bureaucracies and the development of liberal democratic norms of social
organization and public authority
- Tension between neutrality and expertise of full time employees in public
administration, and democracy/rights
- Legal guarantees of civil service employment
- Three types of accountability
o Contestation of administrative action before the court
o Involvement of organized interests in administrative policy making
o Informal accountability (parliamentary ombudsman and transparency
guarantees)
- Globalization of administrative law and rapid migration of administrative principles
(part 2 of the course)
Week 2: Past and Present Administrative Activity
Readings
Richard Stewart, ‘Administrative Law in the 21st Century’ (2003)
- Historical shift from negative → affirmative role for US admin law
- Evolution: from ‘common law’ model in 19th century to ‘analytic management of
regulation’ since 1980s
- Administrative law as ‘profoundly conserving’ due to ‘institutional layers’
- Current dilemma: ‘regulatory administrative fatigue’ → Stewart’s solutions?
Sabino Cassese, ‘New Paths for Administrative Law: A Manifesto’ (2012)
- Beyond the state (globalisation)
- Beyond democratic models of accountability (participation)
- Beyond public bodies (privatisation)
- Beyond the state-society divide (multi-polarity)
Slides
Common law culture and administrative law
- Public interest model is central
- More pragmatic attitude towards administrative action
- Individual entrepreneurs within public administration are valued
- Key values for administrative action in such countries are fairness and independence
of the play of sectional interests, with pragmatism and flexibility as qualities
- Overall, public interest countries are more open to the basic ideas of New Public
Management, which stress entrepreneurial and pragmatic values
Civil law culture and administrative law
- Corresponds more or less to the ‘Rechtsstaat’ model
, - Administrative law is the basic guiding principle for public administration
- Legality of all administrative actions is at the core of accountability systems
- Administrative culture is deductive and rationalistic
- Bureaucratic action is based on respect for the authority of the law
- Considerable attention is given to precedent and a concern with equity, at least in
the sense of equality before the law
- More accepting of bureaucracy as an appropriate form of social organization
English administrative law:
- A unitary, coordinated state with a ‘public interest’ administrative culture
- Agencies developed later and, because of the Westminster/cabinet style of
government (ministerial responsibility) there is still a heavy emphasis on ‘legislative
mandate’ as a legitimizing device
- No separate administrative courts that are part of judiciary (tribunals, part 2 of the
course)
- English administrative law is rooted in the doctrine of ultra vires, also known as the
jurisdictional principle (def: because all administrative power is derived power it is
limited to a defined area and can therefore be restricted to that are by courts)
German administrative law: main historical features
- German administrative law dates back to the 17th century
- Ius eminem: the right of the ruler to interfere with the acquired rights of his subjects,
and they required an effective administration to do so - they interfered will all areas
of social and economic life
- No independent judiciary, judgeship was part of regional sovereignty, and done by
the ruler himself or dependent jurists
- Constitutions in the 19th century started to guarantee a liberal state
- Rule of law & separation of powers
- Separate administrative courts (Rudolf von Gneist)
- Prussian Higher Administrative Court (key institution developing the proportionality
principle, etc.)
German administrative law: main current features
- A federal, coordinated state
- German administrative law has its basis in the basic principle of Rechtsstaat - the
exercise of state authority is subject to the law
- There are agencies, but under ministerial control (cf. Commission v. Germany)
- Separate administrative courts that are part of the judiciary
- German administrative law requires that administrative decisions must be
constitutional and empowered by a statute; if not, they are void
- Art. 20(3) GG (executive bound by law and justice)
- Art. 80 (parliament must consent to delegated legislation - limited power to
delegate)
- Art. 28(2) (limits of municipal self-government)
- Art. 30 (governmental powers reserved to Länder)
French administrative law: main historical features
, - 17th and 18th century: intense conflicts between the royal officers responsible for
administering the provinces and the powerful regional courts in the hands of local
elite (parlements)
- A special body was created to have legal oversight controlled by the monarchy
(conseil du roi)
- French revolution borrowed this conseil destroying special privileges and vested
interest of parlements and the ancien régime
- Napoleon: Conseil d’etat (1799 - both judge and advisory body on legislative matters)
- Growing independence, a large set of judicial review techniques were developed by
the end of 19th and beginning of 20th century
- 1872: tribunal des conflits was created
- 1873: famous Blanco case
French administrative law: main current features
- A unitary, coordinated state
- Like German administrative law, French administrative law is founded on the
principle of legality (principe de legalité) or rule of law
- There are agencies, but they tend to be more of an ‘executive’ nature
- Separative administrative courts that are outside judicial system and are part of
executive branch
- Civil law country, but French administrative law has been judge-made law for a long
time - Council of State case law
- During the last decades of the 20th century more codification, for example, the code
des relations entre le public et l’administration (the code of relations between the
administration and public)
- 2015 codification of general administrative law act (relatively late compared to other
jurisdictions)
- Case law is very important, but statutory law plays an increasingly important role
US administrative law: main historical features
- A federal, fragmented state with a ‘public interest’ administrative culture
- ‘Agencies’ have long been the primary administrative actors (since new deal) leading
to emphasis on judicial review and ex ante control devices such as impact analysis
- No separate administrative courts; tribunals
- The Administrative Procedure Act (APA) is the most important source of US
administrative law, the development of which is closely tied to the development of
the administrative state
In Class
Administrative law: the law that governs the relationship between the state and society
- A vertical relationship
- A public to private relationship
- Designed to deal with disputes between the state and citizens
- Not being awarded a license, challenging an EU decision for its decision to award
money for a nuclear power plant
- A large range but essentially tries to regulate the relationship
Key factors to the evolution of administrative law:
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