Administrative Procedure in Norway
| Author | Audvar Os |
| Published date | 01 March 1959 |
| Date | 01 March 1959 |
| DOI | http://doi.org/10.1177/002085235902500109 |
| Subject Matter | Articles |
Administrative Procedure in Norway
by
Audvar OS,
Chief of Section in the Legislative Division,
Department of Justice. (*)
CDU : 35.077.3 : 351.95/6 (481)
1. -
INTRODUCTION
tion is the division of power between the law-
making body, the executive and the judiciary.
A Norwegian Commission, appointed by
The first gives the statutes, the second puts
the King to examine the question of more
them into effect and the third sees to it that
appropriate safeguards in public administra-
these powers are used within the legal bound-
tion, has recently published its report. The
aries. Each power is separated from the other
Commission consisted of fifteen jurists of high
-
it is a system of check and balance -
of
standing, from different fields related to pub-
mutual control to some degree.
lic administration, under the chairmanship of
In practice these
Terje Wold, Justice in the Supreme Court,
powers may intermingle.
As we shall
former Minister of
see, the executive has for instances
Justice. The others were
some measure of legislative power, which is
a university professor, public officers, repre-
entrusted to it by delegation. The principle
sentatives of the great trade organizations
of division of
(commerce, industry and labour) and
power, however, is a reality in
mem-
our constitutional system.
In this connec-
bers of the Bar.
tion, I want to stress especially that the judi-
According to its terms of reference, the
ciary -
the ordinary courts -
is entitled to
Commission was to consider and make recom-
try not only the decisions of the executive -
mendations
from the
on :
government down to local adminis-
trative bodies -
but also decisions
1. administrative procedure, both
of the Na-
as regards
tional
adjudication and delegated legislation
Assembly in so far as it may be ques-
.
tioned whether
(rule-making), and
an enactment is in conformity
with the Constitution.
2. the control of administrative powers,
comprising judicial review as well as par-
This right of review is not prescribed in the
liamentary control.
written Constitution, but is based on the
practice of the courts and is now established
Before I go into details about the report,
as constitutional customary law.
it may be expedient briefly to outline some
of
Another
our basic constitutional principles and the
important principle in our Con-
general
stitution
set-up of the administration.
is the principle of legality : the ad-
ministration is not entitled to interfere with
the rights and immunities of the individual
1.
The Constitutional Background
without authority in law.
Norway has a formal and written Constitu-
tion dated 17th May 1814. This Constitution
2.
7’he Set-Up of the Executive ’
is above the ordinary law and can only be
changed in
The
a rather complex
highest executive
way, needing a
power is the King in
majority
Council -
the Government. The Council is
vote by two different sittings of the
National Assembly between which a general
composed of the different ministers with the
election has been held.
prime minister as head. Each minister is
usually in charge of a department.
One of the basic principles in our Constitu-
According to article 28 of the Constitution,
all important decisions are to be taken by the
(*) Mr. Os was Secretary of the Wold Commission.
King in Council. A statute may also express-
68
ly state that this procedure is to be followed.
is built upon the same pattern as the Ameri-
But in all other matters, the Government may
can Administrative Procedure Act of 1946 and
leave the decisions to each minister, i.e. his
the Austrian Verwaltungsverfahrengesetz of
department. In practice, the bulk of admin-
1950.
istrative decisions on this level are taken by
Another
officials in the different departments.
part of the report deals with the
judicial and parliamentary control of the Ex-
Besides the departments there are a num-
ecutive.
The Commission makes a number
ber of separate central agencies more or less
of recommendations in this respect and has
integrated in or connected with a department.
put forward a draft bill to establish an in-
The head of such an agency is usually called
dependent public affairs commissioner elected
a director.
by the National Assembly (Stortinget).
The next step on the administrative ladder
is the f ylke -
20 in all -
the head of which
1.
The Draf
t
Bill on Administrative
is the f ylkesmann. He has the final authority
Procedure
to settle a wide range of questions. Many of
his decisions may, however, be appealed
In drafting this bill the Commission has
against to different departments.
tried to strike the balance between the object-
ive of protecting individuals from arbitrary
Further down we find the kommune - the
action by administrative agencies and the
smallest local entity -
which in many respect
equally important goal of expeditious execu-
is sovereign. It is subordinate to the State,
tion of public policy. This issue has led to
however, and has no other authority than
quite a few reservations in the bill, especially
that conferred upon it by the Legislature.
out of regard to the administration’s ability
Decisions of the komntune may not formally
to get through the extra work which the pro-
be appealed against to a higher authority by
posed procedural requirements
’
inevitably in-
a
private individual. But the f ylkesmann
volve.
and the Department of the Interior keep a
constant check on their activity and may
It has further been a basic purpose to draft
quash any decision found to be erroneous.
the provisions so as not to destroy the flexibi-
lity of spontaneous adaption to the specific
Within the ko~nmune many administrative
needs of the situation, which is the very jus-
bodies are established -
commissions, tribun-
tification in several cases for substituting ad-
als, boards, committees and so on. Some of
ministrative action for legislative or court
these are part of the kommune, but many of
action.
them belong to the district administration of
the State and are directly subordinated to a
In general, the draft bill only lays down in
department or a central agency.
writing what has hitherto been good admin-
istrative practice. Partly it is also a codifica-
Some branches of the district administra-
tion of scattered rules from different fields of
tion are headed by an officer and not a board.
the administration.
Of primary importance here is the chief of
police, who has extensive administrative pow-
The draft bill emb,races such topics as bias,
ers.
His decisions are, as a whole, subject to
publicity of administrative documents, pro-
revision by the Department of Commerce or
cedure in dealing with individual and general
the Department of Justice.
decisions (adjudication and rule-making) and
some questions regarding judicial review.
II. -
THE REPORT OF THE
a.
SCOPE OF THE BILL
WOLD COMMISSION
Chapter I deals with the scope of the bill
and, as students of administrative law will
The report gives first a broad survey of ad-
know, this is a rather problematic matter to
ministrative procedure and practice today,
put into statute form.
especially as regards decisions affecting pri-
vate persons. Although the present practice
According to section 1, the bill applies to all
is in general found to be satisfactory, the
administrative matters except as otherwise
Commission feels there is a need to give the
provided by statute or by provisions author-
citizen better protection under the ever-ex-
ized by statute. The term « administrative
panding administrative powers. As a con-
matter
»
is further defined as any matter
clusion the Commission put forward a draft
where an administrative agency is acting on
bill on administrative procedure, which in part
behalf of the State or the kommune.
69
The Commission has purposely refrained
dication and only rarely in connection with
from defining « administrative agency * In
rule-making or other administrative affairs.
its opinion a definition of this term would be
With some exceptions, the rules that
of
gov-
no avail; most likely it would either be too
ern objections to judges of the courts are to
narrow or so comprehensive that it would be
apply to administrative officials.
Pecuniary
quite futile. It is presumed that the term in
or personal interests in the decision will there-
itself is sufficiently clear and definite to settle
fore make an official incompetent, as well as
the main coverage of the bill. Otherwise the
border-line is drawn by supplementary provi-
any other connection with the parties or the
matter at issue « which is
sions. The
apt to reduce the
courts and authorities of the pub-
confidence in his ability to act without
lic prosecution
pre-
are thus expressly excluded.
judice ».
And the applicability of the bill is also limited
by definitions of different kinds of agency
According to the draft bill, incompetence of
actions.
a superior officer will also affect his subordi-
nates in so far as they will be precluded from
A distinction is drawn between « orders
»
making a decision or taking part in the pre-
and « administrative rules ’, the former being
paration of a case unless or until a substitute
decisions « affecting the public rights or du-
is named. And it goes without saying that
ties of an individual and the latter being a
one of the subordinates cannot be named as
decision « binding on an uncertain number or
substitute.
an uncertain group of individuals ». Chapters
V-VIII in the bill lay down the...
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