On 10th and 11th July 2017, Professor Peter Cane (Cambridge and Australian National University), Professor Jeff King (UCL) and Dr Hayley Hooper (Cambridge) organized a very stimulating workshop on “Law, Society and Administration in a Changing World”. Financially supported by the WG Hart Workshop Fund, the Institute for Advanced Legal Studies, and the Society of Legal Scholars, this workshop brought together a wide range of scholars at all stages of their careers, including the most experienced colleagues internationally active in this field. Although the main focus of the workshop was administrative law, the organisors had especially welcomed contributions drawing from various methodologies, including history and comparative law. This account will thus mainly focus on the contribution of comparative law to the understanding of the development of judicial protection of individuals against administrative power. (For a full systematic description of the program, click here).
Administrative law is often said to be the product of peculiar historical compromises specific to each legal system. This was surely confirmed in this workshop as far as this statement relates to the specific solutions adopted in a given country at a specific time. Yet, when it comes to the nature of the subject-matter of administrative law – the executive, its power and its control – then, a different picture emerged powerfully from the presentations and discussions. Despite the many forms that administrative power and its control can take, an overall core logic drives it: ambiguity. For all the benefits an administrative machinery can bring to society and individuals, it has also the tendency to seek to work according to its own principles and to seek to protect – if not to expand – its autonomy. What changes from legal system to legal system is the role of the law to balance (or not) these two aspects. In this respect, the papers presented at the workshop can be usefully grouped along three different categories: (1) discussions of the phenomenon in the UK (1), within European legal systems as well as at EU level (2) and in other parts of the world (3).
- Individual protection against administrative power within the UK
Three papers adopted a mainly UK administrative law perspective; namely, the analysis of factors explaining the specific mix of remedial institutions to control administrative power in the UK, such as courts, tribunals, inquiries and ombudsman (Tom Mullen – Glasgow); internal reviews undertaken by the administration itself (Robert Thomas – Manchester and Joe Tomlinson – Sheffield); and the relationships between administrative law and the regulatory state (Aileen McHarg – Strathclyde).
As these papers were focused on the UK, they allowed me to adopt an external mindset to reflect on the existence of a possible « English administrative culture » from a comparative perspective. For instance, the paper discussing the mix of remedial institutions emphasised the lack of systemic attempt to build a logic and consistent structure to control administrative power in the UK. Indeed, the ever-changing shape and scope of the controlling institutions may parallel the constantly evolving state of administrative bodies in the UK. Continuity is not ensured by institutional stability: public bodies and services are reformed time and again towards more efficiency and economy. Is this a distinctive « English » feature? Is it a feature shared by other systems? If so, to which extent? What makes this constant state of flux needed? What brings then continuity and stability in the relationship between administration and citizens? Can it be pinpointed, named and linked to legal techniques?
When it comes to internal reviews – a technique at the juncture between the moment when an administrative decision has been taken and the moment when this decision is challenged -, comparison is also useful to understand how individual protection can be shaped and/or weakened. Recently developed in the UK, internal reviews are the last stage of the administrative process in an incredible number of cases – maybe because no judicial review is possible at all or because the overall complaint processes have become so exhausting, that many citizens will stop fighting administrative decisions out of complaint fatigue. This paper discussed very interesting « internal » comparisons, comparing the systems of internal reviews in four different UK administrative fields, namely in social security, immigration, homelessness and taxation. This shows the diversity of actual implementation of internal reviews in practice. It would be fascinating to bring these investigations into a traditional comparative research. Indeed, countries like Germany or the Netherlands have developed a general approach to internal reviews for a while, France has recently contemplated to introduce it as well, some countries have internal review mechanisms for specific administrative issues (such as freedom of information requests). Are there common factors behind these internal reviews? Lessons to be learned from elsewhere, either for the government seeking to widen the scope of internal reviews or for academic scholarship seeking to analyse their longer term effects on individual protection against administrative power? Are there specificities to the English internal reviews that might be related to an « English administrative culture » of some sort?
Finally, can an « English administrative culture » be framed in terms of the relationship between the changing roles for the state, the substantive content of administrative law and the theories of the state underpinning it? This question relates to the ways in which a legal system articulates global phenomena and challenges (such as globalisation, international issues) with the realities it has to tackle on the ground. In short, this means that administrative law is understood as a way to facilitate as much as to limit how public bodies act to shape and regulate (now to nudge) individuals to adapt their behaviours so that the sum of these individual behaviour helps over time to address climate change, social injustice and similar global problems. Such an approach of an « English administrative culture » might assume that there is a sufficient level of consistency among legal scholars about principles and values that administrative law should upheld in a given state. Could this exist at « British » level and can it be distinguished in any meaning way from a « French » one, an « Italian » one or a « Norwegian » one? Or does this exist at « English level » in contrast to Scottish, Welsh and Northern Irish approaches? Here, the overall workshop discussions were eye-opening to put a note of caution: the discussions illustrated the diversity of views about the role of the state in relation to major contemporary challenges such as electronic administration, big data or the tensions between substantive and instrumental (administrative) justice. The differentiation across these world views do not seem to find easily an explanation based on country-specific features only. Yet, it may be interesting to gain a better understanding about other administrative systems to see how this might provide further food for thought to test whether a given administrative legal culture may not as much be about the substantive content of administrative law but more about the mind map it provides to read the tensions between politics and law, between administration and individuals, between past, present and future.
- European perspective – in the many forms that « Europe » can take
A range of papers explored the European dimension of individual protection against administrative powers and illustrate some of the difficulties that comparatists have to overcome.
The difficulties triggered by comparison were well illustrated by the discussion of administrative discretion and regulatory capitalism (Colin Scott and Rebecca Schmidt – University College, Dublin). Regulatory capitalism (i.e. the “pervasive regulation embracing a wide range of regulatory actors and instruments, including non-state actors and both soft law and private law instruments”) is an international trend that seek to structure extended administrative regulation exercised by regulators. The ways in which public bodies’ discretion adapt to it in the UK and in Germany have proved to be different, and the ways in which judges control regulatory discretion even more so. Indeed, English administrative law scholarship is familiar with the concept of administrative discretion, in a way that German general administrative law is not. The ways in which the law and formality feature traditionally in both systems differs to such a point that one wonders whether a meaning full comparison of regulatory capitalism would not have to shift from analysing discretion to analysing the actual position of individuals seeking to challenge administrative decisions and the role of intermediary bodies (such as consumer / citizens’ associations) to facilitate and monitor this individual protection.
Two papers linked closely to the specificities of German administrative law and German administrative institutions. Michael Stolleis (Max Planck Institute for European Legal History, Frankfurt) discussed the development of control system in Germany based on his extensive well-known scholarship in this field. Peter Collin (Max Planck Institute for European Legal History, Frankfurt) drew our attention to a phenomenon that is usually overlooked in German administrative law scholarship, namely non-judicial control of the administration, such as economic control (by accounting bodies); politico-moral control (by parliamentary bodies) and sectoral control (such as the parliamentary commissioner for the armed forces, the commissioner for data protection and the equal opportunities commissioners). This second paper is especially interesting for the comparatist as it dispels the idea that all controls over the administration are exercised by courts in Germany. Here, this type of new information about alternative control mechanisms shows their diversity as well as their old age (at least for some of them).
Equally very stimulating to shake up some often-held assumptions was the paper given by Sophie Boyron (Birmingham) on mediation in French administrative courts. She explained her empirical investigations about mediation in France, where she followed closely the development of a pilot project which led to the adoption of a recent act on this emerging practice (loi n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle). Such a first hand understanding of the dynamics behind current administrative developments provides fascinating food for thoughts for comparatists, as it might be difficult to secure equally wide access to administrative actors and their controllers across a range of countries. Yet, going beyond written account of administrative practices is crucial to understand where power actually lies (or not).
Robert Siucinski (Lodz) brought us a refreshing remainder however that the complexity of understanding the specificities of administrative law does not stop to France, Germany and the UK. In many ways, a true European administrative law system needs to give its proper place to other legal systems or at least to recognize that there are different families of administrative law in Europe, above these three usual suspects that are the French, German and English administrative legal systems.
Yet, there is no way to escape for very long the reality that in practice, these three usual suspects contributed significantly to the shaping of key legal concepts at European level. Catherine Warin (Luxembourg) neatly exposed this process when it comes to the protection of individual rights as developed in the case law of the CJEU. Filipe Brito Bastos (EUI) illustrated a similar process when it comes to the notion of executive federalism. If national influences became encapsulated in the CJEU’s case law, the distinctive role of individual commissioners such as Hallstein needs also to be taken into account.
Besides the legal contribution of national systems to the development of EU law and the limitation of executive powers at EU level, the role of the UK in emphasising the importance of clarifying financial channels and the financial powers of the European commission cannot be undervalued. Finance and public spending are indeed a leverage for power relationship as much as for developing social cohesion at EU level. In highlighting these points in his very systematic unpacking of “executive federalism” as a concept, Paul Craig (Oxford) comes back to the major difference between English and German administrative law that has been mentioned earlier. German administrative law would specify very closely, possibly in statutes, when and how financial powers are to be used, if and how public bodies have to use either unilateral decision-making or contracts to spend their monies while English administrative law would discuss this question under the “discretion” and accountability umbrella’s (of the “third prerogative”, according to Daintith’s words).
In their analysis of “procedural explosion” as a tool for controlling the administration, Carol Harlow (LSE) and Richard Rawlings (UCL) also demonstrate the challenge to stick to a mere legal analysis when one wants to compare how power is exercised and controlled at European and domestic levels. Very quickly, other disciplines or discourses such as the “new public management” need to be used to provide a framework for a range of regulatory techniques, helping coordinate highly complex and fragmented administrative systems. For other scholars, such as Gianluca Sgueo (NYU, Florence), coordination in policy-making and policy-shaping can also be provided by networks of associations and civil society coalitions. A level of cooperation between these coalitions and supranational regulators may indeed contribute to the development of certain policy convergence. Yet, normative questions can be flagged up about the role of such networks of associations: are they suitable drivers for change and for increasing democracy?
Democracy and individual protection against arbitrary are closely interlinked. Their development and fostering are a daily challenge that often brings scholarship to question the role of judges in promoting them in general, at European level or thanks to a dialogue between domestic and European courts. This leaves scholars to grapple with the intriguing mystery of trying to figure out what goes on in the head of judges. Veronika Fikfak (Cambridge) embarked into a methodical dissection of the possible reasoning process going behind the amount that ECtHR judges grant as non-pecuniary damages for violation of human rights. She used statistical methods to review ECtHR’s decisions over 13 years in relation to articles 2, 3, 5 and 6 ECHR. Her research seeks to test which model of justice explains best the decisions (individual justice, upholding convention rights, punishment and deterrence). It informs us that richer countries are sentenced to pay more than poorer countries or that the court takes into account the fact that some countries are systemic violators of the ECHR. Yet the amount of pecuniary damages is only increased by 27 euros per additional violation!!
- From a wider perspective
The last group of papers left the European continent to broaden our horizons. Four of these papers were especially dedicated to one distinct administrative system, one to an administrative control body analysed from a comparative perspective and one to research methods for projects encompassing a large number of countries.
Two papers responded to the burning current events of the use and limits of presidential powers in the USA. Jerry Mashaw (Yale) discussed these presidential powers in the USA, comparing the similarities and differences between how President Obama and President Trump used their powers especially in the fields of immigration, climate change and the administrative state. He helpfully highlighted the role of bureaucracies (and their professionalism) in securing the implementation of presidential policies on the ground. Peter Strauss (Columbia) pursued the analysis of the deconstruction of the administrative state under President Trump. Key components and actors for the operation of such an administrative state are wiped away or reduced under President Trump. The most prominent examples of this trend are the delays in appointing numerous senior civil servants and the reduction of agencies’ budgets.
As the most recent development of administrative law in the USA casts light on the relationships between law and politics, James Fisher (Tokyo) discussed how Japan has transformed the administrative law that had been imported by the American Occupation after WWII to its own political context. Here again the interactions between law and politics matter to understand the peculiarities of Japanese administrative system and especially the relative weakness of administrative law when it comes to controlling administrative power. Although changes are under way in the law, the observer cannot predict the final outcomes of these reforms as changes in political ideology do not operate in a void: other factors such as bureaucracy or economic concepts are also shaping the actual power that the executive enjoys.
The institutional context within which administrative law develops was also key to the paper presented by Guillermo Jiminez Salas (UCL). This fascinating paper transported me in a system that was completely new to me. The Chilean comptroller-general has developed as a key controller of executive power: it was no longer as in the USA a main financial oversight body. Yet, the system also bears similarities with France, both in terms of the “financial inspectors” and the consultative role that the French Conseil d’Etat plays. In Chile, political regimes such as the Allende and Pinochet regimes have not prevented the comptroller-general to develop a legal control on administrative power. Plenty of questions were bubbling about this presentation. Two might especially be interesting to pursue in some way. The first one relates to the possibility to generalise the interactions between financial control and legal control. For all its reporting on value for money and its contribution to the public account select committee’s discussions, the English National Office Audit does not seem to evolve towards a legal method of assessing public spending but remains firmly anchored in economic and organizational methodologies. Why is it so? Does it tell us something about an “English administrative culture” in some way? The second question relates to the importance that needs to be given to a careful high quality drafting of legal text. France as Chile for instance have specific institutions dedicating attention to this aspect. How come that institutions such as the EU dispense with them? Is this not a locus where institutions (or the lack thereof) frame politics and legal techniques and possible provide ex ante protection against administrative arbitrary?
The comparatist may try to develop categories to seek possible answers to these kinds of questions. Two papers undertook that endeavour in very different ways. Richard Kirkham (Sheffield) developed a grid for understanding the factors influencing how ombudsmen are transplanted across the world and more especially how the ombudsmen evolve as an institution once they have been transplanted. He distinguishes three categories, namely a) individualism and complaint-handling; b) hierarchism and constitutional ombuds; c) egalitarism and democratic ombuds. The paper applies this grid to a range of ombudsmen including those acting in Australia, Jamaica, Thailand and the UK. Overall, the ombudsman looks like a highly transposable institution regardless of the different economic, social and political contexts. The ombudsman seems to generate legitimizing benefits to the political order which recognises the need for administrative power to be controlled through extra-judicial independent administrative justice institutions.
Away from context and institutions, David Law (Washington and Hong Kong) took a totally different approach to compare constitutional texts. He uses a form of automated content analysis known as Structural Topic Modelling. This enables him to analyze large bodies of text for patterns without having to first “code” the text into numeric data. Law suggested that three constitutional archetypes can be found across world’s constitutions, namely a liberal archetype, a statist archetype, and a universalist archetype. In the first archetype, the constitution is the tool providing protection to the individual against executive (i.e. state) power. In the second archetype, the constitution pays attention to elements shaping the community, especially identity, membership, and symbols of the state. In the last archetype, the constitution establishes a link with international commitments of the state. The idea here is to demonstrate that these archetypes can be traced to the texts and actual words used in constitutional preambles. The statistical method can be widely discussed for its advantages (e.g. word order does not matter, basic mistakes can be easily remedied) and its limitations (e.g. same words can have a totally different meaning on the ground depending on the actual respective strength, legitimacy or professionalism of the administration and judges). As often, numbers and statistics can be seen as useful tools to start a discussion or alert us to hidden obviousness.
Overall, this workshop had brought me to ponder what administrative law is. Surely, the discussed papers suggest a highly vital and energetic discipline stretching far beyond the study of the “control of the administration by courts”. Current topical challenges such as the Internet, Big Data, nudging and Brexit renew the pressing need to define better how the administration works in the UK, Europe and across the world. Judges are only a very little tip of the iceberg as the development of so many ex ante and ex post alternative dispute resolutions demonstrates. A crucial matter is the importance of expanding skills and techniques to include a wide variety of lenses to analyse administrative power: from empirical research (e.g. on French mediation as carried out by Sophie Boyron), historical investigation (e.g. on the Chilean Comptroller General by Guillermo Jiminez Salas), or the inclusion of statistical methods (as in the presentations done by David Law and Veronika Fikfak). Only then a deeper reflexion on the variety of factors shaping the power relationships between administration and individuals would be possible. This refreshing workshop surely steered the curiosity to read more about the research projects presented during these two days!
Dr Yseult Marique
Essex School of Law
September 2017
(Suggested reference: Y. Marique, ““Law, Society and Administration in a Changing World” – Account”, https://british-association-comparative-law.org/2017/09/03/law-society-and-administration-in-a-changing-world-account)
British Association of Comparative Law 