Managerialism, Administrative Justice and Public service Reform in Britain

Date01 December 1999
AuthorDavid Clark
DOI10.1177/0020852399654001
Published date01 December 1999
Subject MatterArticles
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Managerialism, administrative justice and public
service reform in Britain
David Clark
This article has four objectives. The first is to survey a number of ‘new public
management’ policy innovations introduced (or possibly pioneered) in Britain in
the 1980s and 1990s which impinge directly on the relationship between the
citizen and the state. The second is to develop an interpretation of these reforms
as constituting, at least in part, a ‘second wave’ of administrative justice reforms
based on techniques and principles opposed to traditional ‘administrative law’
concerns with court-like adjudication and legal remedies. The third objective is to
undertake a preliminary evaluation of the success of these reforms in avoiding the
administrative pathologies imputed by the authors of the reform programme to
‘law-bound’ approaches to administrative justice (Waldegrave, 1993). The final
objective is to identify some remaining gaps in the British regime of administra-
tive justice.
The article is divided into three parts. The introductory part draws an analytical
distinction between three ‘ideal typical’ models of administrative justice, under-
stood as devices for resolving disputes between citizens and public bodies and for
securing the redress of legitimate grievances. The second part traces the post-war
evolution of the British ‘regime’ of administrative justice, charting developments
concerning judicial review and tribunals, the ombudsman and the rise of internal
complaints systems. The third part reviews the recent wave of managerially
inspired reforms, including Next Steps agencies, the Citizen’s Charter (1991) and
the open government codes pertaining to central government (1994) and the
National Health Service (1995), from the perspective of its impact on the balance
of the contemporary administrative justice regime. It also examines the likely
impact of legislative measures announced by the Blair government in the field of
citizens’ rights.
Three models of administrative justice
The discussion in this article rests on an analytical distinction between three
models of administrative justice, understood as ‘ideal type’ mechanisms for
resolving disputes between the citizen and the state. These are referred to as the
David Clark is Principal Lecturer in the Social Sciences Faculty, Southampton Institute,
UK. CDU.35.047(42).
International Review of Administrative Sciences [0020–8523(199912)65:4]
Copyright © 1999 IIAS. SAGE Publications (London, Thousand Oaks, CA and New
Delhi), Vol. 65 (1999), 473–490; 010600

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International Review of Administrative Sciences 65(4)
political, legal and administrative models respectively. There is a further con-
ceptual refinement in the linking of each type of mechanism to a distinctive orga-
nizational pathology or bureaucratic ‘deviation’ (H. Rawlings, 1986).
The political model privileges the role of elected politicians in securing the
redress of grievances, and is particularly associated with the use of parliamentary
means of controlling the activities of government. Parliamentary control of the
executive is exercised through procedural devices such as written and oral parlia-
mentary questions, through committee scrutiny of the policy and administrative
performance of government departments and agencies, and through the audit
function — investigating the regularity and value for money of public expendi-
ture. The essential feature of the political form of redress is the intervention of
Members of Parliament (MPs) and local councillors on behalf of individual con-
stituents, pursuing complaints through informal, political channels.
‘Parliamentarism’, and with it the primacy attached to informal public admin-
istration and to the role of the constituency MP as protector of the citizen, is
deeply embedded in British political culture (Ridley, 1984). In Rawlings’ formu-
lation, an MP can act as a gatekeeper, a letterbox or an advocate — pressing an
issue through a combination of parliamentary and extra-parliamentary techniques
such as recourse to the media. Overall, the administrative impact of such case-
work may well be positive; but it is equally clear that as a technique favouring
individualized ‘pork-barrelling’, advocacy-as-intercession runs counter to the
Weberian ideal of objective, impartial administration (R. Rawlings, 1986).
Indeed, in some political cultures this pathology may become institutionalized as
clientelistic administration.
The legal model is predicated on the availability of justiciable rights enforce-
able in the courts via judicial review of the legality of administrative decisions. In
its British manifestation, it is strongly identified with rules of natural justice
modelled on ‘participatory adjudication’, such as rights to notice, legal repre-
sentation and oral hearings (Jabbari, 1994). For this reason, the system of admin-
istrative tribunals1 is included within its ambit as well as the courts, despite the
tribunals’ greater procedural informality and the extension of jurisdiction to cover
the merits of decisions.
The administrative model is identified with principles of good or equitable
administration which incorporate ‘due process’ standards and safeguards into the
administrative process proper, together with independent administrative adjudi-
cation of disputes between the state and the citizen. In Britain, this is symbolized
by the ‘ombudsman family’, with its distinctive remit to secure remedies for
persons aggrieved by ‘maladministration causing injustice’.2 To an extent, the
administrative model substitutes inquisitorial for adjudicative techniques and
procedures. This applies with particular force to the public inquiry system, which
is designed to regulate polycentric as opposed to bi-polar administrative deci-
sions, i.e. those whose implications extend beyond the immediate parties and
involve considerations of the public or collective as well as individual interests,3
but it is also characteristic of ombudsman-type investigative techniques.

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Clark: Public service reform in Britain
475
Again, both legal and administrative models of justice are susceptible to the
production of distinctive administrative pathologies. Using Jowell’s terminology,
and recognizing that the terms are often used interchangeably, these may be
referred to as ‘judicialization’ and ‘legalization’ respectively. ‘Legalization’ can
be defined more precisely as ‘the process of subjecting official decisions to the
governance of predetermined rules’, whereas ‘judicialization’ is ‘the process of
submitting official decisions to adjudicative procedures’ (Jowell, 1975: 2–3). The
potential to produce these pathologies is inherent in the use of control techniques
associated with either model of administrative justice. Thus, the prospect of
judicial or independent administrative review may lead to defensive decision-
making, to excessive formalism and to delay and unnecessary complexity in the
decision-making process.
The post-war evolution of the British regime of administrative justice
The term ‘regime’ refers to the concrete, historically-grounded amalgam of
political, legal and administrative strands of administrative justice. It may be said
to consist of legitimating norms, an institutional design (the formal machinery for
investigating and resolving disputes) and an organizational order (sets of formal
and informal rules and procedures developed in both administrative and adjudica-
tory institutions for balancing the public interest in efficient government with the
protection of the rights and interests of individual citizens). Such a definition
connects with other social science uses of the term ‘regime’ which emphasize the
importance of the underlying structure and logic of action of relatively stable sets
of formal and informal rules in creating and sustaining a capacity to accomplish
goals, as in ‘urban regimes’ (decision-making relationships between city govern-
ments and non-governmental interests) (Stone, 1989) and the transition from
bureau-professional to managerial ‘organizational regimes’ in the post-war
welfare state (Clarke and Newman, 1997).
It is possible to discern two broad waves of reform in the post-war period: an
initial wave in the wake of the publication of the Report of the Committee on
Administrative Tribunals and Enquiries, known as the Franks Report (Cmnd 218)
in 1957; and a contemporary wave inspired by the rise of managerialist adminis-
trative doctrines in the 1980s and 1990s. The backdrop to these developments is
the existence of ‘two strong traditions’ in British government which have been to
rely on mechanisms of political rather than legal accountability to secure high
standards of public administration, and to deal with perceived needs for improve-
ment administratively and incrementally rather than in a principled, legal way, as
part of a coherent vision or framework for public administration (Oliver and
Drewry, 1996: 140).
The first wave of reform corresponds with the assertion of a new legalism in
social welfare in the 1960s and 1970s in response to the perceived inadequacies
of procedural rights in an area of public policy characterized by extensive
administrative discretion. Its principal focus was the development of principles of
legality, natural justice and rationality in courts and administrative tribunals.

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