THE CITIZEN AND THE ADMINISTRATION IN FRANCE — THE CONSEIL DETAT VERSUS OMBUDSMAN DEBATE REVISITED
| Author | DAVID CLARK |
| Date | 01 June 1984 |
| DOI | http://doi.org/10.1111/j.1467-9299.1984.tb00554.x |
| Published date | 01 June 1984 |
THE CITIZEN AND THE ADMINISTRATION
IN
OMBUDSMAN DEBATE REVISITED
FRANCE
-
THE CONSEIL DETAT VERSUS
DAVID
CLARK
The pu
ose of
this article is to reappraise, in the light
of
recent French experience with
the ‘Om%udsman’, the prevailing orthodoxy, shared by Clite opinion in both France and
Britain in the
1960s’
that the Ombudsman and a system
of
administrative courts applying
’droit administratif‘
(a
body
of
autonomous
rules
separate from private law), were mutually
exclusive modes
of
securing redress
for
citizens aggrieved by administrative action. The
thesis is advanced that
in
the contemporary welfare state, irrespective
of
particular political,
administrative and legal traditions, a system
of
administrative law and an Ombudsman
are complementary not competitive institutions.
THE
CHANGING
POLITICAL
ENVIRONMENT
No
serious observer can doubt the increasing turbulence, to use a favoured
metaphor, of the political environment within which the business of public
administration has been conducted in Western European countries in recent years.
The new politics are characterized by sharp ideological polarization;
loss
of faith
in technocracy and in the values of expertise;
a
growing demand for more public
involvement in policy-making; pressures for greater openness in government and
administration; and a greater readiness on the part of the public to challenge
official
decisions.
This
turbulence would appear to
be
a function
of
certain common trends:
the growing interdependence of government and industry that has taken place since
the Second World War, and the associated trend towards ’the inclusion of discre-
tionary formulae in the statutes and regulations which empower state action’
(Winkler
1977,
51);
and the extension throughout the
’60s
and
‘7Os,
in
an
era of
deepening economic crisis, of the range and scope of services and facilities
(programmes of collective consumption, to use the terminology coined by radical
students
of
public administration) (Dunleavy
1982)
provided by central
or
local
governments or by other public agencies.
Dr Clark
is
Senior
Lecturer in Politics, Department
of
Educational and Social
Studies,
Southampton
College of Higher Education.
He
is
grateful to Howard Davis for comments
on
an earlier draft of
this paper.
Public Administration
Vol.
62
Summer
1984
(161-179)
0
1984
Royal Institute
of
Public Administration
162
DAVID CLARK
New kinds of pressure groups emerged at this time representing the interests
of
those who use
or
are affected by such programmes. The growing assertiveness
of welfare, consumer and environmental groups, and their success in politicizing
issues of distributive justice in the welfare state, inevitably increased the arena of
possible conflicts between the citizen and public authorities. This preparedness to
challenge official decisions, in conjunction with governments’ increasing
use
of
the
law, in combination with administrative directives, as an instrument
of
public
policy, has posed a major challenge to the traditional machinery for controlling
administrative action, i.e. the courts
or
tribunals using formal, court-like procedures.
Hence the new interest in academic circles
in,
and the readiness of governments
to experiment with,
less
formal and more accessible grievance handling mechanisms,
whose ’modus operandi is a collective investigation
of
a grievance followed, usually,
by a process of negotiation
or
cajoling to try to provide a remedy
or
solution to
the aggrieved party’ (McAuslan 1983,
5).
The Ombudsman has featured promi-
nently in such initiatives and Ombudsman-style institutions have been introduced
into both Britain (starting with the Parliamentary Commissioner scheme in 1967)
and France (the institution of the
Mediuteur
in 1973)
-
countries where govern-
ments operate within very different political, constitutional and administrative
frameworks, and exemplars respectively of the common law and administrative
law legal traditions.
In the event, of course, the existence of the Parliamentary Commissioner has
not stifled calls for a new constitutional settlement to redress the imbalance that
has arisen in the modem welfare state between executive power and the rights
of the citizen (Scarman 1974; Hailsham 1978); nor has
it
pre-empted a ’renaissance
of
administrative law’ (Wade 1980), accompanied by
a
growing volume of litigation
in the fields
of
immigration, public housing, public transport, education, social
security,
health services, and local government generally, together with significant
procedural reform in the rules for applying for judicial review and a
de
fucto
specialization of hlgher judicial personnel (Blom-Cooper 1982). Conversely, a long
established and widely respected system of administrative courts did not prevent
France from succumbing to the vogue for Ombudsman-style institutions.
Readers
of
the journal will no doubt be familiar with British developments but
perhaps less
so
with recent French experience with the Ombudsman and with the
nature of the working relationship that has evolved between the
Mbdiuteur
and
the
Conseil
d’Etat.
It
is
this
theme and the wider significance of the French experience
in illuminating the forces making for multi-storied rather than single-storied
structures of safeguards (Bell 1978) for the citizen in dealings with the administra-
tion in the contemporary welfare state, which is the concern
of
the present article.
CONSEIL DETAT VERSUS
OMBUDSMAN:
THE
1960s
ORTHODOXY
It
needs to be stressed at the outset that a
Conseil
d’Etat-type administrative
jurisdiction and an Ombudsman were seen by elite opinion in both France and
Britain in the ’60s as mutually incompatible modes
of
redress against improper
or
irregular administrative action.
This
is perhaps rather surprising: after
all,
Sweden
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