Graduate Teaching Assistant
University of Hull Law School
Copyright 1998 Irene Loh.
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
This has culminated in short-hand metaphors such as "managerialism" or "New Public Management" which have been taken to encompass the structural, organisational and cultural changes which have taken place in the public service (for example Massey 1993; Hughes 1994; Dunleavy and Hood 1994; Farnham and Horton 1996). As the practice of public sector management develops and mutates, theories of paradigmatic shifts continue to grow. Some commentators speak of a move to "post-bureaucratic government" (for example, Aucoin 1990) while others write about a shift from "bureaucratic to entrepreneurial government" (for example, Osborne and Gaebler 1993). More recently, Jan Erik-Lane and others (Lane 1997) have espoused a new analytical framework which they call Deregulation, Privatisation and Marketisation (DPM). The trends represented by NPM and DPM seem to be mirrored in various aspects of the public sector in many developed and increasingly, developing, industrial economies not only here in Europe but also in the United States and throughout the Commonwealth (for example, Farazmand 1994; Bekke 1996).
The constitutional implications of the paradigmatic shifts to a managerial focus have, save for a few notable exceptions, hitherto not been subject to a rigorous analysis. There now appears to be an important book which fills this peculiar gap. In her book, In Pursuit of Good Administration, Diana Woodhouse approaches this complex phenomenon of NPM from a public law standpoint. It is a text to be reckoned with for at least two reasons: firstly, it is a laudable attempt by a prolific public lawyer to weave out some of the central public law concerns from NPM, a phenomenon which not only owes its origins to managerially-oriented philosophies, but one which also espouses values apparently hostile to the traditional canons of public law and administration. Secondly, it advocates, and successfully executes, a novel approach to the subject of NPM. A quick review of the NPM literature suggests that this book is probably the first, and in this sense, a brave, attempt by any public lawyer to address the evident tensions between public administration (PA) on the one hand, and new public management on the other, in an explicit, head-on manner.
Unlike previous, positivistic, scholars who ground their critique of NPM almost exclusively in contentious constitutional doctrines (for example, Hennessy 1990; Drewry and Butcher 1991; Bogdanor 1993; Campbell and Wilson 1995), Woodhouse chooses to focus on the more normative, distant and overarching concept of "good administration" as the beacon with which to navigate the complex interactions between PA and NPM (which she treats as distinct concepts: see pp. 222-24). She rightly points out that, in the absence of statutory and judicial definitions, the term "good administration" is not strictly a legal concept (p. 147, p. 225). As an ethical norm however, it is more of a cluster concept, with sometimes competing goals (see chapters 1, 3, 4 & 7).
In her preface, she casts the remit of the book rather modestly in the following terms:
"[to examine] the concept of good administration against the background of civil service reform, an increasingly interventionist judiciary and executive-judicial tension. It looks at administrative and judicial perspectives of good administration in relation to central government".
In effect, Woodhouse achieves more than that. She introduces 4 models of
good administration: the public service model, the NPM model, the empirical
model (based on the output of the judiciary and the Parliamentary Commissioner
for Administration, hereinafter the PCA) and the comparative model (based
on the Australian experience). She argues that while there are tensions,
particularly between the first three models, in their balancing of the individual
interest and the public interest, there are also some overlaps in terms of
the underlying principles each espouses (p. 223).
Taking just one example of such overlap between the models: Woodhouse recognises that despite the differences in the methodology of the judiciary and the Ombudsman, there appears to be an implicit inter-institutional discourse and understanding between the courts and the PCA in terms of the principles such as "equity, fairness, justice and reasonableness" (for example, p. 63, p. 89) which underpin and inform the work of both. More importantly, there is often, though not always, a noticeable affinity between the operational instincts of these institutions on the one hand, and the ideals of the public service model on the other (p. 223).
To pick an example of the tension, as adverted to earlier, between the models: the PCA as guardian of the public service model sometimes finds itself in conflict with the government of the day, and in particular, with the previous Conservative administration whose political leanings lay more towards the NPM model, in his investigations of complaints. One of the examples Woodhouse cites is that the PCA's treatment of complaints of the often-criticised Child Support Agency. The Ombudsman, like the Select Committee on the PCA, reserved his strongest criticisms for the policy decisions of the Minister for Social Security (pp. 66 - 68).
Through an impressive range of research, Woodhouse is able to show that the concept of good administration is inherent in the basic stratum of the British constitutional psyche (and possibly also in overseas jurisdictions such as Australia), manifesting itself in the practice of ministers and civil servants, as well as guiding the work of the judiciary and the Ombudsman. Some of the tensions between the theory and practice of good administration, Woodhouse argues, can be ironed out through a statutory Code of Administrative Practice. Woodhouse rightly notes that, rather ironically, the practice of codification is one of the "best practices" to have emerged from the NPM phenomenon (p. 228). She also discusses the possible opportunities for such codification (pp. 228 - 30) (cf Birkinshaw 1993).
Despite its very strong credentials, the book contains a few relatively minor foibles which may elude either a less critical or a more sympathetic review. First, even though Woodhouse considers the concept of good administration within central government from four perspectives, one of which is the PCA, the sub-title of the book seems to highlight the significance of the courts but hides a rather important reference to the Ombudsman. Admittedly however, Woodhouse may have intended to accord a lower priority to the PCA (with which she deals in only 1 chapter), and a higher one to the courts (which she covers in 4 chapters).
Secondly, arguably little use has been made of the positive lessons from, or contributions of, the Nolan (Nolan Report 1994) and Scott (Scott Report 1995) reports with regard to the idea of good administration (cf Tomkins 1998). Instead, the circumstances that led to these reports, as discussed for instance in the introductory chapter, are taken as evidence of "a decline in public standards" (pp. 15-22). Furthermore, due perhaps to understandable limitations of space and also, to the time the book went to print, the relatively new office of the Parliamentary Commissioner for Standards is not considered in this book.
For completeness, one may also bundle together some other omissions which may be attributable more to style than substance. In terms of theory, it is noticeable that Woodhouse's discussion steers clear not only of the heavy theoretical works on liberalism and the free market that are generally thought to underpin NPM, but also of their associated controversies (cf Zifcak 1994). In terms of methodology, apart from the standard note of gratitude in her preface, Woodhouse could also have usefully inserted a general discussion of her method of contact with civil servants, similar to the approach taken by Heclo and Wildavsky (1981) in their study of the public expenditure process.
Finally, although the recent Civil Service Code is discussed (pp. 22-24), readers may not necessarily get the full flavour of the background manoeuvering that led to the introduction of the Code which finally supersedes the Armstrong Memorandum. The traditional doctrine was outlined by Fulton as follows:
"Civil servants however eminent remain the confidential advisers of Ministers, who alone are answerable to Parliament for policy." (Fulton Report 1968, Appendix A).
As Bradley and Ewing put it, "Civil servants have no constitutional personality or responsibility separate from the government" (Bradley and Ewing 1994, p. 300). The significance of this is restated in the Civil Service Code, para 1 of which stipulates:
"The constitutional and practical role of the Civil Service is...to assist the duly constituted Government..in formulating policies of the government, carrying out decisions of the Government and in administering public services for which the Government is responsible." (Cabinet Office 1996) (emphasis added).
As if to highlight that the ultimate locus of civil service loyalty lies with the government, rather than in the Crown or with the public, the government rejected the formulation of the paragraph above by the Treasury and Civil Service Committee which provided:
"The constitutional and practical role of the Civil Service is...to assist the duly constituted Government...in administering services for which the Government is responsible in the interests of the public." (see The Government's Response 1994, p. 47) (emphasis added).
These are all minor points which do not, and should not, detract from the solid foundations of this book which in essence, provides a very lucid account of the competing demands for accountability on the one hand, and efficiency on the other, in public administration within the framework of NPM. Through it, Diana Woodhouse has initiated an important debate on one of the central contemporary concerns of the British constitution: the promotion of a culture of accountability that permeates all levels of the British constitution, from the level of the actors (for example, ministers, civil servants) to that of the guardians (for example, the courts and the Ombudsman).
For perhaps far too long, public lawyers have lamented the defensive nature and ad hoc approach of the work of the constitutional guardians such as the courts and the Ombudsman. One of the challenges now, for public lawyers working in this dynamic field of "improving governance", is to build on Woodhouse's vision of good administration. There are areas in which useful links can be flagged up, particularly on how, and to what extent, developments in the area of public service ethics contribute to the theory and practice of good administration. Notwithstanding the minor omissions discussed earlier, Woodhouse's book is an excellent starting or reference point for anyone with a keen interest in improving the governance of Britain.
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