2. Part II: The Specification of the Principles of Good Governance

can be realized in different ways. Often it depends on the topic, but citizens’ initiatives and referenda are good examples. The objectives of participation can be different: it can be from the perspective of the citizen, but it can also be done for management reasons. For legitimizing the aims of the government, different forms of participation can be very relevant.

On the issue of transparency, we distinguished between the narrow and the broad notions, which can be summarized as a more or less open functioning of the institutions of the state. This topic of transparency is often related to the activities of the government, like meetings, the forms of access to information, and the different types of government action. The existing restrictions become significant when dealing with issues of privacy.

2. Part II: The Specification of the Principles of Good Governance

In Part II, we specified the six principles of good governance. We started with the principle of properness, which has also been developed under the name of the principle of natural justice. It is a principle which has originally been developed and specified by the judiciary as an unwritten principle. The second, the principle of transparency, is related to the concept of democracy. Transparency is connected to the principle of participation which has its roots in the concept of democracy. The principles of effectiveness and accountability both have a relationship to the institutional structure and functioning. The last principle is the human rights principle which is linked to the rule of law but also to democracy.

The principle of proper administration and the specification in subprinciples are seen as the starting points for the principles of good governance and can be found in legislation, case law, policy rules, and in ombudsman reports. In this study, eight subprinciples of proper administration are distinguished:

1. The prohibition on misuse of power, with its four distinguished specifications: against the purpose of power, striving for an incorrect goal, inappropriate use, and inconsistent use. 2. The prohibition on arbitrariness, with four forms of manifestation: arbitrariness grasped as evident unreasonableness, visible unreasonableness in which there is a balance of interest but it is not acceptable, that cannot be done reasonably (marginal judicial review), and is not unfair. 3. The principle of legal certainty in which we distinguished two aspects: formal legal certainty in the sense of recognizable rights and duties, and substantive legal certainty in the sense of durability of rules, orders that must be complied with, protection of rights, and the prohibition of retroactive effect. 4. The principle of confidence (or legitimate expectations) as worked out in general by policy rules, directives, or circulars. In concrete cases, the following specification criteria for creating confidence apply: who, in what context, how, and by which disposition. 5. The principle of equality, which is split into equality for the law and equality of administration and encompassing: no predisposition, no negative discrimination, no positive discrimination, and equal spread of costs made in the general interest. 6. The principle of proportionality in general is focused on a right balance between means and aims, and more specifically it applies to administrative sanctions. 7. The principle of carefulness, where we note the difference between the substantive and formal components. Substantive carefulness means a careful balance of interest. In formal carefulness, steps in procedure of ordering are specified: (a) treatment, (b) research, (c) consultation, and (d) publication.

8. Finally, within the principle of reasoning, there is also a distinction between substantive (bearing reason in relation to: facts, interest, and rules) and formal (recognizable reason by giving or publication of the administrative motives).

The history of administrative judicial review is mainly linked to growing competences at the cost of review powers of higher administrative bodies. The courts mainly developed the principles of proper administration—sometimes they followed the ombudsman interpretations and vice versa. Both did so to counterbalance the increase of discretionary powers of the administration. For this purpose, the courts generated discretionary powers for themselves, in creating and applying the different general principles of proper administration. In many cases they could choose between a restricted and a comprehensive review of an administrative order. At the moment, the courts do not always extensively justify this choice. Ironically, this sometimes leads to legal uncertainty as to judicial review. In the Netherlands, the introduction of the General Administrative Law Act (GALA) has two facets. It is a codification of (sub)principles of a hundred years of judicial review on administrative decisions and creating unity. It is also a modification of the status quo reached in 1994. This modification implies a severe formalization of judicial review in Dutch administrative law, especially when courts refer to their competences as restricted to subjective law enforcement. This may be perfectly alright for citizens and organizations that are used to taking care of themselves with regards to judicial matters. For people who are not used to that, the system has become harder. Given that unity, differences that could not be seen before have become visible due to the codification in the GALA. Most importantly, this effort to create unity and coherence has provided for much more legal certainty and standardization in administrative law.

The traditional relevance of the principle of transparency, such as access to public information, has often been developed into a Freedom of Information Act (FOIA). Regulations have also been developed related to the other two subprinciples: the transparency of meetings and the transparency of administrative acts. But less known is the information developed and published in the framework of public inquiries by specific committees, or the effects this information could have for those who have been investigated. Often, this can include the possible criminal effect of publications and the violation of fundamental rights by these publications. These interests ought to be balanced out in drafting legally correct legislation.

In a representative democracy, not all government actions, especially because of the growth of framework legislation and public contracts,1 are controlled by parliaments as the representatives of the people. Generally, only the main topics or the general lines of administrative policies are controlled. For that reason, there is an additional need for participation by the citizens. It is important that in all the government’s activities which have direct consequences for people, at least the directly affected persons— natural and legal—are involved in the decision-making process. However, participation is also linked to the legitimacy of the administration in a more substantial way, and the form of deliberative democracy promotes that. Direct democracy and representative democracy often strengthen each other. There are different types of participation. The following forms of public participation have already been described several times: popular initiative, citizens’ panel, referendum, and community-level participation. Some forms are related only to some phases in the process of policy development, but other forms can be used in all the phases of the policy process. It means that a

1 Zigirinshuti 2013.

choice always has to be made, based both on the issue involved and on the desired degree of participation by the citizens. An example of the citizens’ initiative at EU level can be found in article 11(4)of the TFEU. There is a lack of sufficient methodology on direct democracy and the principle of participation enjoys a great variety of standards throughout Europe. For example, if one compares the use of direct democracy in the United Kingdom to Switzerland, there is a vast contrast. Since the 1850s, Switzerland has held over 500 national referendums. If a petition is signed by one per cent of the electorate and submitted calling for a referendum on an issue under consideration by the government, then a referendum must be held. The signatures of 2 per cent of voters are enough to call a referendum on an issue not under government consideration. By contrast there have been only eleven referenda in the United Kingdom. They have generally been used over the issue of devolution or other major constitutional issues, such as remaining part of the EU in 1975. In fact, there are significant drawbacks to the use of referenda and the ad hoc manner in which referenda have sometimes been used can be regrettable, often as a tactical device by the government of the day. We see that several of these types of participation have already been formulated in legislation, but not all: newer forms of participation often have an informal character. Finally, a ladder of citizen participation has been developed, based on the degree (from minimum to maximum) of participation: manipulation, therapy, informing, consultation, placation, partnership, delegated power, and citizen control.

We started the discussion on the principle of effectiveness with some dictionary definitions of ‘effectiveness’ and found that effectiveness is subject to research in non-legal disciplines and it is rather new in the legal discipline. In social science, ‘effectiveness’ refers to the ways of using methods of empirical investigation to develop knowledge about human social activity. In physics, it is the framework intended to explain certain observed effects. And, in economics, it means the highest quality at the least possible cost. It must be noted that the principle of effectiveness is intertwined with the other principles of good governance, which are the tools used to reach the goal that is good governance. An example is the combination of the principle of participation and the principle of effectiveness for which the CLEAR-method has been developed. However, the goal of public participation will not be reached if the principle is not implemented effectively, and therefore we encounter overlaps between the principle of effectiveness and other principles of good governance. It is necessary to stress that principles of good governance do overlap and work together, and therefore effectiveness should not be viewed as an isolated principle. In a legal context, two aspects of effectiveness are relevant: that effectiveness is a principle of good governance and that effectiveness has procedural and substantive aspects. In international law, the principle of effectiveness has been developed along the following lines: effectiveness as actual observance, effectiveness as a rule for treaty interpretation, and effectiveness as a strong factual effect on a legal norm. Effectiveness in European Union law means the effective implementation of EU rules, substantively and procedurally; effectiveness as a principle of EU law, developed by the ECJ; and equivalence and effectiveness in the context of effective judicial review. Effectiveness in national administrative law is about internationalization and the interdisciplinary approach of administrative law, effective implementation and execution at the national level, and effectiveness in the sense of the interrelation between legal norms and facts.

For the principle of accountability, we specified several steps. The step from purely financial accounting to public accountability offers audit offices a chance to emancipate themselves from their somewhat dull bookkeeping background. They can enhance their public legitimacy by taking up new roles: for example, the vigilant