The expanded role of legal accountability in regulating public administration
As the modern administrative state came into being in the first half of the twentieth century, it was widely assumed that the legal process should play a peripheral role in regulating its functioning.
In the United Kingdom, Robson and Laski preached the virtues of judicial self-restraint and deference to administrative decision-making,[1401] while Frankfurter and Brandeis sounded a similar chord on the other side of the Atlantic.[1402]Much has changed. Legal accountability mechanisms now play an important role in regulating the activities of public authorities.[1403] Legislation has been a key driver of this transformation: statutes such as the Human Rights Act 1998 (the HRA 1998) and the Equality Act 2010 have imposed new legal controls on public authorities, while tribunal jurisdiction has been expanded by legislation such as the Special Education Needs and Disability Act 2001. The willingness of courts to expand and deepen the scope of judicial review has also contributed significantly to the enhanced role now played by legal accountability in public governance. The tribunal system has also become a key element of the regulatory landscape, handling over half a million cases a year.[1404] In general, the ‘judge over the shoulder' has come to cast a long shadow over the functioning of public administration. Few areas of state activity are now exempt from the supervisory jurisdiction of the senior courts and public authorities have become subject to an expanded range of administrative law controls.[1405]
The expanded reach and substance of legal accountability controls reflects how public law has moved away from the positivism that dominated early twentieth century legal theory towards a greater embrace of principle- and value-based reasoning and the discourse of human rights.[1406] This has generated new expectations that laws regulating the relationship between the citizen and the state should be based upon a more substantive concept of the rule of law and protect important human interests such as autonomy, equality and dignity which risk being marginalized by the utilitarian focus of most public authority decision-making and the majoritarian orientation of party political democracy.[1407] As a result, legal accountability mechanisms are now expected to play an active role in protecting individual rights and promoting adherence to values such as transparency, participation, fairness and respect for the rule of law.[1408]
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