Administrative Control and Civil Service: A Comparative Perspective PDF

# Administrative Control and Civil Service: A Comparative Perspective ## 1. Introduction * Administration cannot do without control for many reasons. * The administration is responsible for public affairs in various areas of social, economic, political, cultural life. * The performance of the adm...

# Administrative Control and Civil Service: A Comparative Perspective ## 1. Introduction * Administration cannot do without control for many reasons. * The administration is responsible for public affairs in various areas of social, economic, political, cultural life. * The performance of the administration’s broad tasks and functions must be subject to appropriate checks and evaluations. * The administration has the power to decide on individual rights and interests. * Public authority cannot stand outside of control in a democratic society. * The administration is required to be effective and efficient, so the control of the administration's actions is a necessity. * Many standards addressed to the administration other than efficiency and effectiveness presuppose the need to control the administration's activities. ## 2. Control - Definition * Control is viewed in two ways: as a function or as an organizational system. * Control involves examining the existing condition and comparing it with the desired or postulated condition. * There are different types of control. For example, we can distinguish between external and internal control. ## 3. Administrative Courts * Administrative courts are courts that specialize in administrative law. * They adjudicate cases of litigation involving the state and private entities. * There is no single model of administrative justice. ### 3.1. Some History * The seventeenth and eighteenth centuries in France were marked by intense conflicts between officers responsible to the Crown and powerful courts controlled by local elites. * Judicial courts lack jurisdiction over administrative acts of the State. * Napoleon created the Conseil d'État, the first specialized administrative court. * The Conseil d'État still maintains the dual function of adjudicating cases against the French administration and drafting government laws and rules. * Judicial review made by ordinary courts (i.e., the judicial power of the government) represented an intrusion on the executive power. * Ordinary courts were not allowed to adjudicate claims against the government. * This was the main rationale for assigning that task to a specialized body. ### 3.2. The English Model * The distinction between public and private law has been historically less sharp in England. * Ordinary courts have jurisdiction over all types of disputes. * A constitutional struggle developed in the seventeenth century between the Stuarts and judges with respect to the judges' right to decide cases. * The Stuart kings attempted to create separate courts to deal with cases related to the government. * The victory of the Parliament established the independence of judges. * Courts developed judicial review as a way of supervising inferior government bodies. * Administrative tribunals developed during the twentieth century. ### 3.3. The German Model * German liberals during the nineteenth century endeavored to implement legal structures that would limit state power by monarchs. * Rudolf von Gneist advocated for an independent judicial review system that would ensure the protection of citizens' rights. * Gneist's ideas were implemented with the Prussian Supreme Administrative Court in 1872. ## 4. Administrative Tribunals in England * In the 19th century, boards or commissions performed a mixture of legislative, executive and adjudicatory functions. * The principle of ministerial accountability to Parliament influenced the development of agencies. * Only those at the head of government departments and officials who report directly to them should be responsible for creating and implementing policies. * Agencies were left with only the adjudicatory function. * Tribunals are believed to be faster, less expensive, and more informal. * They have specialized knowledge. * The existence of tribunals reduces the problems of courts that would not be able to handle a large number of cases. * Courts of the time might not demonstrate an understanding of the protection of the substantive interests provided by law. * Courts were claimed to be inaccessible to ordinary citizens. * The judicial and legal communities advocated against any reform of the law. * Administrative tribunals performed functions similar to those of the judiciary. * Departments often appointed members of the tribunals and provided funding and staff for their operation. * State law did not formulate common to all types of tribunals, general rules for their system and method of formation. * The position and composition of individual administrative tribunals were normalized by separate legislative acts. * The Tribunals, Courts and Enforcement Act 2007 created the system of administrative tribunals. * The First-tier Tribunal decides general appeals against a decision made by a Government agency or department. * The Upper Tribunal hears appeals from the First-tier Tribunal in points of law. * The position of the tribunals as judicial institutions was strengthened by naming the Upper Tribunal as the superior court of record. * The legislature intended that the Upper Tribunal should have the same position as the Administrative Court. * The Tribunal Courts and Enforcement Act added provisions, according to which judiciary is considered to be any person who occupies a position listed in Schedule 14. ## 5. Models of Adjudicatory Powers of Administrative Courts in Europe * There are two models of adjudication in administrative cases: cassation and reformatory. * **Cassation adjudication** consists in the possibility of revoking the contested decision of the authority and obliging it to resolve the case taking into account the judgment of the court. * **Reformatory adjudication** means the court decision replaces the decision of the administrative authority. ## 6. Ombudsman * The primary function of modern ombudsmen is to control the activities of public administration. * The institution of the ombudsman shows a number of common features in the international cross-section. ### 6.1. Common Features * Protection of individual freedoms and rights. * Independence from the bodies whose activities it can control. * Absence of formalized proceedings before it. * Wide and free accessibility to it by citizens. * Ability to act not only on request but also ex officio. * Reaction to inaction and prolongation of proceedings. * Ability to demand explanations from controlled entities, request files, check facts, and address recommendations to the controlled entities. * Lack of power to impose its position on controlled entities. ## 7. Civil Service * The term “accountability” implies the duty to act in a responsible way and to be accountable to others. * There is no universally accepted definition of civil service or civil servant. * A civil servant is an employee of the executive power. * They have special duties and responsibilities and should often meet specific requirements. ## 8. Models of Civil Service ### 8.1. Features of the Career Model * Public contract and appointment of a civil servant. * Recruitment only for the lowest positions. * Formalized recruitment procedures. * Statutory educational requirements. * Statutory requirements for training and probationary service. * Limited recognition of professional practice brought from the non-public. * Statutory salary system. * Statutory special pension system. * Predetermined promotion system. * Guarantee of employment stability. * Code of ethics for civil servants. ### 8.2. Features of the Contractual Model * Recruitment for all jobs. * No statutory educational requirement, relevant specific skills for a specific position. * No statutory requirement for training and preparatory service. * Acceptance of work experience acquired in the non-public sector. * Lack of formalized recruitment procedures depending on the position. * Optional seniority rules in determining salaries. * Lack of a formalized career advancement system. * No guarantee of employment stability. * Lack of a statutory special pension system. * Contractual salary system based on collective agreements. * Salary dependents on performance. ## 9. Accountability of Civil Servants ### 9.1 Disciplinary Proceeding in France * When the behavior of a civil servant threatens the good functioning of the state administration or undermines public confidence in the state administration, different sanctions can be applied: warning, reprimand, level degradation, temporary removal from the post without pay, transfer, degradation, temporary removal without wage claim, early retirement, removal. * First instance and appellate commission; after: Supreme Council for Civil Service or file an administrative suit. ### 9.2. Disciplinary Proceeding in the UK * The Constitutional Reform and Governance Act 2010 and The Civil Service Code and the Civil Service Management Code (CSMC) set disciplinary measures. * Departments and agencies have the authority to decide the level at which decisions are made, whether or not to proceed with disciplinary action, the disciplinary procedures to be followed, and the arrangements for appeals. * Departments and agencies must comply with these rules. * The Cabinet Office recommends setting up simple, clear procedures which closely follow the ACAS Code of Practice and guidance. * Disciplinary decisions must be taken by someone at least one level higher than the individual concerned. * Appeals on disciplinary matters must be heard by someone at least one level higher than the person making the decision being appealed. * Appeal decisions should be taken by someone independent of the original disciplinary decision.