Mind the accountability gap – administrative law and legitimate governance
The role of administrative law is central to the legitimacy of any system of governance. In a system of governance based on the rule of law,1 those who wield public power must respect the law and where that power is discretionary, there must be clear limits upon it to prevent arbitrary, corrupt or unfair behaviour. Administrative law may be broadly defined as ‘a branch of public law concerned with the composition, procedures, powers, duties, rights and liabilities of various organs of government that are engaged in administering public policies’.2 It can be viewed as a system for controlling public power, or as a system to facilitate the defence of an individual’s rights or as a conflation of both of these propositions.3 The development of administrative law and the role it plays in a system of governance is dependent upon the context in which it develops. Thus, there is a different role and definition applied to administrative law across the Member States of the European Union (EU).4 A typical view of administrative law might be that it provides a conduit for making public actors accountable to the public through a variety of mechanisms; accountability is a key organising concept in providing a useful definition of
the nature of administrative law.5 It may provide certain procedural safeguards for individuals when dealing with public authorities, or provide a mechanism for challenging the decisions taken by public authorities that adversely affect an individual’s interests. Regardless of which normative approach is taken to the characterisation of administrative law, even in the most developed democratic systems of governance, administrative law is an essential factor in the delivery of a legitimate system of rule.