By Artur Victoria
All laws need to be interpreted, and ambiguities and uncertainties are inevitable. There are two ways of dealing with this.
The first is to try to specify every detail.
The second is to emphasize the purposes of legislation and the principles underlying it as a guide to interpretation by the individuals who are expected to follow it and the judges who may be called on to adjudicate it. Modern practice is increasingly emphasizing the latter while never eschewing the former.
The proposed search for justifications of public institutions provides values that can inform the principles of the laws that govern those institutions. Such values provide the key to synchronizing them with ethical standard setting and institutional reform. To do this, the principles underlying new and existing legislation should be clearly stated and the text of the legislation considered to ensure that it is consistent with those principles.
The ‘Backstop' Role of the New Administrative Law
The so-called ‘new' administrative law can provide important supports to ethical standard setting and good governance generally. During the 1970s, a powerful range of related tools, each of which supported the others, massively strengthened administrative law.
Judicial review was simplified and streamlined to remove many of the old technicalities. With very few exceptions, it meant that any citizen could challenge the government in court over the legality of decisions on several grounds, such as whether decisions were affected by bias, failure to give a fair hearing to substantially interested parties, failure to take into account relevant considerations, acting under the dictation of others etc. However, this right of challenge, which had long stood under the ‘prerogative writs' was facilitated by two related elements.
First, citizens affected by decisions could demand reasons for decisions that affected them. Secondly, they could demand relevant documents under Freedom of Information. Like all legislation, this is expensive and acts best as a backstop.
Other elements of the ‘new administrative law' provided the primary defense — Ombudsmen to investigate government decisions and independent Administrative Appeals Tribunals to reconsider afresh decisions made by officials.
The essential merit of these reforms and warn against tendencies of governments to cut them back.
The principles of administrative law reflect value judgments about the way that officials should make decisions. Thus, administrative law provides a legal backup to ethical standard setting. However, the potential of this link to strengthen both are rarely canvassed and have never, to our knowledge, been actively pursued.
Any reform process should review administrative law principles in the light of the ethical codes that are adopted. The goal should not be to replicate the code of ethics in administrative law but to ask a similar question to that is asked in relation to criminal penalties: at what point should a failure to follow ethical rules lead to legal consequences — in this case the invalidation of the decision?
The negative consequences for the official are far fewer and the positive consequences are significant. As they and their colleagues have learnt more about the detail of their powers and duties, and have been reminded of the reason why they hold those powers, administrative law need only be utilized at a much higher point on the normative continuum.
We should not get carried away by administrative law as a means for ‘enforcing' ethics. This mistakes the relationship between ethics and law. Ethics should still operate more directly through the conscious understanding of public officials and by taking prior advice where they are in doubt.
Nevertheless, the combination of ethical standard setting and administrative law should be explored further and exploited to the full.
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Source:www.isnare.com |
