Public law
Lecture 9 (Administrative law)
Constitutional law and administrative law
- No clear dividing line between constitutional and administrative law
- Administrative law is both ‘of’ the state and ‘against’ the state
o Problematic but necessary tension between ‘effective government’ (capable
administration) and ‘protection of individual rights’ (accountable administration)
- Are public entities entitled to do more or less than private entities?
What is administrative law?
- The law regulating the public administration (‘executive function’ of the State) and its
relationship with citizens
- Background: trias politica (Montesquieu)
o Legislative power | Executive power | Judicial power
Key issues in administrative law
- Rechtsstaat / Rule of law: administrative actors should be conferred determined powers by
law (Act of Parliament) for specific purposes (principle of legality)
- But: the legislative power cannot legislate on every single aspect of society (Meuwese &
Ranchordas) due to:
o Need for customization (maatwerk)
o Technological development
- In other words: administrative actors need discretion in fulfilling their task
- Hence: balancing exercise between effective decision-making and protection of individual
rights
Principles of good administration
Response to administrative discretion: principles of good administration (not necessarily restricted to
administrative decisions)
- Principle of lawfulness;
- Principle of non-discrimination / equal treatment;
- Principle of legal certainty;
- Principle of proportionality;
- Principle of legitimate expectations;
- The right to a fair hearing before an adverse decision is taken
- The right to have one’s affairs handled impartially and fairly. What principles are relevant
from a data science perspective?
1
,Administrative decision-making – a blueprint
Sources of administrative law (general)
1. International Treaties, EU Law
2. Constitution
3. Statutes / Act of Parliament (legislation)
- General legislation: ‘Administrative procedure acts’ (APA) / General Administrative
Law Act
- Sector specific legislation (Telecommunications Act, Migration Act, etc.)
4. Delegated rulemaking (agency regulations, governmental decrees, executive orders).
5. Case-law
Sources of administrative law and data
1. International Treaties, EU Law
- Aarhus Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters
- Convention of Tromsø on Access to Official Documents
- General Data Protection Regulation (EU)
- Open Data and re-use Directive (2019/1024/EU)
2. Constitution
- Right to government information / right to privacy
3. Statutes (legislation)
- General Administrative Law Act (access to documents)
- Freedom of Information Acts (FOIA) / Data protection legislation / Archiving Act
General Administrative Law Act
- Objectives
o Harmonization: more uniformity across different sectors
o Codification (of case-law)
- Contents
o Communication between public bodies and citizens (in general; e.g. use of language)
o Administrative decision-making (general rule and/or single case; e.g. publicity of
administrative decisions)
o Judicial procedures (e.g. access to documents in proceedings)
- Scope:
o Public bodies
o Administrative action in general and decision-making in particular
Public bodies (by nature)
2
, - State
o Parliament
o Government
o Ministers / Departments
- Provinces
- Municipalities
- Data: Smart cities?
3
Lecture 9 (Administrative law)
Constitutional law and administrative law
- No clear dividing line between constitutional and administrative law
- Administrative law is both ‘of’ the state and ‘against’ the state
o Problematic but necessary tension between ‘effective government’ (capable
administration) and ‘protection of individual rights’ (accountable administration)
- Are public entities entitled to do more or less than private entities?
What is administrative law?
- The law regulating the public administration (‘executive function’ of the State) and its
relationship with citizens
- Background: trias politica (Montesquieu)
o Legislative power | Executive power | Judicial power
Key issues in administrative law
- Rechtsstaat / Rule of law: administrative actors should be conferred determined powers by
law (Act of Parliament) for specific purposes (principle of legality)
- But: the legislative power cannot legislate on every single aspect of society (Meuwese &
Ranchordas) due to:
o Need for customization (maatwerk)
o Technological development
- In other words: administrative actors need discretion in fulfilling their task
- Hence: balancing exercise between effective decision-making and protection of individual
rights
Principles of good administration
Response to administrative discretion: principles of good administration (not necessarily restricted to
administrative decisions)
- Principle of lawfulness;
- Principle of non-discrimination / equal treatment;
- Principle of legal certainty;
- Principle of proportionality;
- Principle of legitimate expectations;
- The right to a fair hearing before an adverse decision is taken
- The right to have one’s affairs handled impartially and fairly. What principles are relevant
from a data science perspective?
1
,Administrative decision-making – a blueprint
Sources of administrative law (general)
1. International Treaties, EU Law
2. Constitution
3. Statutes / Act of Parliament (legislation)
- General legislation: ‘Administrative procedure acts’ (APA) / General Administrative
Law Act
- Sector specific legislation (Telecommunications Act, Migration Act, etc.)
4. Delegated rulemaking (agency regulations, governmental decrees, executive orders).
5. Case-law
Sources of administrative law and data
1. International Treaties, EU Law
- Aarhus Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters
- Convention of Tromsø on Access to Official Documents
- General Data Protection Regulation (EU)
- Open Data and re-use Directive (2019/1024/EU)
2. Constitution
- Right to government information / right to privacy
3. Statutes (legislation)
- General Administrative Law Act (access to documents)
- Freedom of Information Acts (FOIA) / Data protection legislation / Archiving Act
General Administrative Law Act
- Objectives
o Harmonization: more uniformity across different sectors
o Codification (of case-law)
- Contents
o Communication between public bodies and citizens (in general; e.g. use of language)
o Administrative decision-making (general rule and/or single case; e.g. publicity of
administrative decisions)
o Judicial procedures (e.g. access to documents in proceedings)
- Scope:
o Public bodies
o Administrative action in general and decision-making in particular
Public bodies (by nature)
2
, - State
o Parliament
o Government
o Ministers / Departments
- Provinces
- Municipalities
- Data: Smart cities?
3
