The administration and you - A handbook E-Book

Council of Europe

• Herausgeber: Council of Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 144

Veröffentlichungsjahr: 2024

Beschreibung

The public administration is above all for us, the protection of our rights and the pursuit of the public good.

This handbook will be of interest to all those concerned with the proper functioning of public administration: individuals who apply for public services and action and the public officials who process their applications; lawyers, judges and ombudspersons involved in the review of the public administration’s activities; and policy makers and legislators concerned with public administration reform. It also takes into account the increasing use of artificial intelligence systems and automated decision making by administrative authorities in their dealings with individuals.

It sets out and explains the substantive and procedural principles of administrative law concerning relations between individuals and public authorities, with commentary backed up by references to the Council of Europe legal instruments (conventions, recommendations and resolutions) from which each principle is drawn and to the relevant case law of the European Court of Human Rights.

Leseprobe

 

THE ADMINISTRATION AND YOU

 

A handbook

3rd edition

 

Principles of administrative law

concerning relations between

individuals and public authorities

 

Contents

Click here to see the whole table of contents, or go on the « Table of contents » option of your eReader.

Introduction

People rely on public authorities for many aspects of their daily lives. In many cases, the decisions taken by a public authority will have important consequences for each individual’s economic and social well-being. It is important, therefore, that legal systems provide and apply principles of administrative law that are effective in establishing and maintaining public trust in the fair and proper functioning of public authorities. The principles set out in this handbook are of primary importance in protecting the rights and interests of individuals in their relations with public authorities, whether in respect of requests made by them, individually or collectively, for action or services, or in respect of actions taken by a public authority at its own initiative. These principles cover the decision-making processes that public officials go through, the quality of the administrative decisions they make, as well as the opportunities the public have for challenging those decisions, and the role of tribunals, courts or other non-judicial bodies in reviewing them.

The principles of this handbook commonly concern decisions taken by public authorities in economic and social matters (referred to as “administrative decisions”): for example, applications to undertake some form of commercial activity, permission to build or develop land or change its use, access to a local school, allocation of public housing, and hospital and nursing care. Decisions are most commonly taken at regional and local level depending on the nature of the public service. The principles will also be applicable to decisions taken by central and federal government authorities, for example decisions in relation to tax matters, vehicle licensing and passport applications.

In the context of public administration, decisions are increasingly made with the support of algorithms or algorithmic systems. In this handbook, “algorithmic decision making” is used as a generic term, regardless of the underlying technology (see Terminology and key concepts). The administrative procedure can either be supported by algorithmic decision-making systems (partially automated decision) or completely delegated to such systems (fully automated decision). In either case, systems may generate output that partially informs decision making. In addition, chatbots (see Terminology and key concepts) are increasingly used for administrative communication and public policy development.

When public authorities make use of algorithmic decision making, they should comply with the law and principles of the rule of law, human rights and democracy. Where decision making is conducted via an internet platform, digitally or using algorithmic systems, the physical location of a public authority may not be relevant. Nonetheless, the principles apply equally, irrespective of the location or whether or not the service is delivered via an internet platform, digitally or through algorithmic decision-making systems. Given the specific character of online services provided by public authorities (for example, when they provide the only point of access to a public service), it is particularly important that steps are taken by them to ensure the proper application of these principles.

Sources

This handbook sets out and explains principles that have been adopted by the Council of Europe which are relevant to relations between public authorities and the people they serve. The Council of Europe instruments from which these principles are drawn are listed in Appendix I. The reader should note that these instruments are the authoritative texts, as they are the result of political agreement between the member states of the Council of Europe and have been adopted (and opened for signature, as the case may be) by its Committee of Ministers. While recommendations and resolutions of the Committee of Ministers of the Council of Europe are not legally binding on its member states, they do have political and moral authority by virtue of each member state’s agreement to their adoption (unless, and to the extent which they have expressed a reservation to the text at the moment of its adoption) and the extent to which they are widely applied in the law, policy and practice of member states.

Attention is drawn to a European Union (EU) resource similar to this handbook – A toolbox for practitioners on quality of public administration (2017 edition, available in English only).

Terminology and key concepts

Inevitably, over time, the terminology used by the Council of Europe has evolved and this is reflected in its texts in the area of administrative law. As a general rule, this handbook adopts the terminology used in Recommendation CM/Rec (2007) 7 on good administration, and the definitions contained therein.

► “Administrative decisions” refer principally in the context of this handbook to non-regulatory decisions taken by public authorities in relation to individual measures that concern one or more individuals. Actions by public officials consequent to an administrative decision represent implementation or execution of that decision and are not separate, independent decisions. Regulatory decisions of general application (orders, bye-laws and regulations) are also covered. The handbook does not deal with decisions made in the exercise of a judicial function or the participation of a public authority in a criminal investigation, or those decisions relating solely to the internal organisation or functioning of public authorities.

► “Public authority”, sometimes also referred to as the administrative authority or the public administration, means a body established by public law, whether at national, regional or local level, for the purpose of providing a public service or acting in the public interest, as well as any private law body vested with such powers.

► “Discretionary power” means a power that leaves a public authority some degree of discretion as regards the nature of the decisions it can take, enabling it to choose from several legally admissible solutions the one which it considers the most appropriate.

► “Individuals” refer to both natural persons and legal persons (i.e. bodies created by law), as well as persons who by virtue of national law have the right to claim a specific collective interest.

► “Public official” refers to any members of staff, whether statutory or contractual, employed by state authorities or departments, whose salary is paid out of the state budget, excluding elected representatives. For the purposes of this handbook, this term includes staff employed by a private law body which discharges public or quasi-public functions.

For the purpose of this handbook:

► “Algorithmic decision making”, or “algorithmic decision-making system”, means a process of making a decision with the support of automated means. It usually involves the use of automated reasoning to aid or replace a decision-making process that would otherwise be performed by humans. It does not necessarily involve the use of artificial intelligence but generally involves the collection and processing of data.1

► “Algorithmic systems” are understood as applications that, often using mathematical optimisation techniques, perform one or more tasks such as gathering, combining, cleaning, sorting, classifying and inferring data, as well as selecting and prioritising them. The tasks also include the making of recommendations as well as decision making.

► “Artificial intelligence (AI)” is used as an umbrella term that refers to a set of techniques dedicated to improving the ability of machines to assist or replace human decision making.

► “Chatbot” means a computer program designed to simulate conversation with human users.

Public authorities and the rule of law

In carrying out their functions public authorities should balance individual interests with the interests of the community they serve, in other words the “public interest”. Administrative law regulates the exercise of powers by public authorities and provides for the control of their use. In some countries, there are special administrative law proceedings and courts to resolve disputes arising from the exercise of these powers whereas, in others, such disputes are resolved by ordinary courts. In many cases, non-judicial review of decisions made by public authorities will also be available.

Given the privileged place that public authorities have in democratic societies and the public character of their role, it is natural that the rule of law is the primary source of many of the principles in this handbook. The rule of law ensures that everyone – individuals and public authorities – is subject to the law; that there is legal certainty and that everyone knows what his or her rights and duties are under the law; that public authorities cannot act in an arbitrary manner; that proper application of the law is ensured by an independent and impartial judiciary whose judgments are enforced; and that human rights are respected, especially the principles of nondiscrimination and equality of treatment.

These principles still give public authorities a legal margin of discretion in decisions they make, which should be left to them so public affairs are managed fairly and efficiently.

Public sector reform

Over time, privatisation and nationalisation can change the public sector and the services it provides. Change can also arise as a result of changes in funding arrangements where the state decides in specific cases to be no longer responsible for the direct delivery of particular services (for example, in the areas of health and education). The state may instead decide to confer responsibility for the delivery of services to a private agency or possibly the voluntary sector whose operations might be supported either wholly or in part by public funds. In addition, decentralisation or federalisation can bring delivery of some public services closer to the individual, while centralisation can move them away, unless the centralised agency delivers its services through a local office. Whatever the context, the principles in this handbook are relevant so long as the service provided and the decision-making process that relates to it retains a public character. This is also the reason why these principles apply not only to public officials but also to private bodies which discharge public or quasi-public functions (see the definition of “public official”, above).

Delivery of public services through algorithmic decision-making systems

Over time, not only the delivery of public services has been entrusted to private sector actors, but the way such services are provided has also evolved. The use of algorithmic decision-making systems in the public sector is becoming more prevalent owing to their low cost, round-the-clock availability and user-friendly character. While the deployment of algorithmic decision-making systems has numerous advantages, it also entails new risks, such as algorithmic discrimination, privacy concerns due to extensive data collection and challenges accountability for errors or biases, which may result in the rights of public service users being violated.

Given the specific context of administrative decision making where there is an imbalance of powers between public authorities and individuals, additional safeguards should be put in place to mitigate any risks and ensure compliance with the principles outlined in this handbook. Machines as such cannot be held accountable for the malfunctioning of algorithmic decision-making systems. Therefore, public services delivered and administrative decisions made through algorithmic decision-making systems should be seen and treated in the same way as if they had been carried out by public officials. The principles in this handbook remain relevant for any form of algorithmic decision-making systems used in delivering public services, as long as the service and decision-making process maintain a public character.

European Convention on Human Rights

Many of the decisions taken by public authorities will concern individual rights and freedoms protected by the Convention for the Protection of Human Rights and Fundamental Freedoms (ETSNo. 5 – hereinafter “the European Convention on Human Rights” or “the Convention”). Of particular importance in this context is the general prohibition against public authorities discriminating against anyone on any ground, such as those indicated in Protocol No. 12, Article 1,2 and the rights to a fair trial (Article 6) and to an effective remedy (Article 13). Other rights, such as the right to respect for private and family life (Article 8), the protection of property (Protocol No. 1, Article 1) and the right to education (Protocol No. 1, Article 2), will be relevant to decisions of public authorities on typical issues such as land use, building controls, regulation of businesses and professional bodies, schooling, pensions, social security benefits and care proceedings in relation to children.

The fair trial guarantees of Article 6 will apply to the procedures that enable the decisions of public authorities to be challenged (see Chapter IV). The reference in Article 6 to the determination of a person’s civil rights and obligations includes legal disputes between individuals and a public authority provided their outcome is decisive for the individual’s private rights and obligations (Ringeisen v. Austria). Certain types of disputes are excluded from Article 6. These arise from the exercise of state sovereignty, sometimes referred to as “hard-core” public authority prerogatives, and include disputes over taxation (Ferrazzini v. Italy), immigration (Maaouia v. France) and standing for elections (Pierre-Bloch v. France). Public officials also enjoy the protection of Article 6 in relation to disputes with their public employer. They will only lose this protection where national law specifically denies them access to a court in the particular circumstances of the dispute and where such an exclusion can be justified by the state concerned on objective grounds (namely where there exists a special bond of trust and loyalty between the public official and the state, and the subject matter of the dispute in issue relates to the exercise of state power or it has called into question the special bond) (Vilho Eskelinen and Others v. Finland). Note also that characterising the proceedings as administrative law procedures (rather than as civil law proceedings) will not preclude the application of Article 6, as the European Court of Human Rights applies an autonomous interpretation of national legal proceedings for the purposes of its application of the Convention.

A number of significant judgments of the European Court of Human Rights, relevant to or recognising the importance of the principles in this handbook, have been selected in order to illustrate the application of these principles, but it should be remembered that the principles themselves are, of course, not the subject of these judgments. The relevant selected cases referred to are listed in Appendix II.

1 The definitions of algorithmic decision making and artificial intelligence are set out in the Recommendation of the Council of Europe Commissioner for Human Rights of 2019 entitled “Unboxing Artificial Intelligence: 10 steps to protect Human Rights”, accessed on 3 October 2023. Furthermore, the definition of the rule of law is set out in the “Report on the rule of law”, European Commission for Democracy through Law (Venice Commission), CDL-AD (2011) 003rev and in the “Rule of law checklist”, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016), CDL-AD (2016) 007.

2 These grounds are sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Chapter I Substantive principles

The principles contained in this chapter apply to public authorities when determining matters that affect the rights and interests of people living or working in the areas they administer or in which they deliver public services.

These principles concern the quality of administrative decisions. They reflect key elements of the rule of law (objectivity, impartiality, legality) and the social need for a fully transparent and participative environment between the community and public authorities.

Principle 1 – Lawfulness and conformity with statutory purpose

Public authorities shall act in accordance with the law and within the rules defining their powers. They shall not act arbitrarily.

Source

► Recommendation CM/Rec (2007) 7 on good administration (Article 2)

Commentary

The content of decisions taken by public authorities and the manner in which they are taken should have a basis in law. Where a public authority acts outside or beyond its powers (ultra vires), then that action will be unlawful. So that the public may understand the nature and extent of a public authority’s powers, these powers should be clear, precise and published widely.

Public authorities should act where they have a legal obligation to do so except where circumstances arise beyond their control (force majeure). Force majeure is accepted as a valid reason for not fulfilling a contractual obligation. In this context, the state should ensure that public authorities have the necessary resources to fulfilling their legal obligations, or the necessary powers to secure such resources by their own means (for example, local taxes).

Public authorities should act in accordance with the law and their statutory powers, failing which they are at risk of taking unlawful administrative decisions or acting outside or beyond their powers. In order to prevent them acting arbitrarily, public authorities should act with objectivity and impartiality (see below, Principle 3).

No one should benefit from the unlawful conduct of public authorities. Unlawful decisions should be withdrawn, subject to any interests legitimately acquired by individuals relying on impugned decisions (see below, Chapter IV).

The reasons for which public authorities use their powers should correspond to the reasons for which these powers have been granted as laid down by statute. Public authorities should not use their powers for an improper reason or purpose, even if the outcome might be the same. This principle is illustrated under French law by the doctrine of “misuse of public power” (détournement de pouvoir