This thesis addresses the long-debated question of courts’ proper role in enforcing constitutional social rights; and it does so from a new perspective – that of political trust. Its central argument is that the concept of political trust – as it has been conceptualised and theorised in the relevant social science literature – has normative potential for defining such a role for courts. Specifically, I argue that courts, in enforcing constitutional social rights, can, and should, use political trust as an adjudicative tool, employing it to develop a standard to which government, in its provision of social goods and services to the public, can and will be held. To make out this argument, I draw on both theoretical and empirical social science scholarship on trust and how it functions in contemporary societies. I suggest, based on that scholarship, that we can expect constitutional social rights adjudication by courts to be able to impact (and in the right circumstances, to foster) political trust. And following from this impact, in combination with the well-recognised value of political trust by social scientists as well as a host of other principled reasons, I make the claim that political trust can, and should, lie at the very centre of social rights enforcement by courts.

Political trust and the enforcement of constitutional social rights

Recent years have seen accelerated processes of decentralization and devolution of social services from central government toward local authorities and from them to non-profit organizations (NPOs). This article describes a case study of the process of transition of power from a local authority to a NPO and the outcomes of this transition on public policy making. The findings presented in the article are based on a qualitative analysis of documents over a period of 7 years (1999–2006) in a large local authority in Israel and its relations with a NPO which provide services for the elderly.

Who Has the Power? The Role of NPOs in Local Authorities

This article explores the democratic values underlying public services when they are outsourced. Building on Rosenbloom and Piotrowski’s (2005a, 2005b) framework, we examine whether and how administrative law norms – that serve as central democratic governance and accountability mechanisms in the administrative state – are extended to the new (private) frontline service providers. Through a study of the regulation of the privatized welfare-to-work programme in Wisconsin, we find that new forms of administrative law are evolving in third-party government. These forms differ from administrative law as it usually applies to public agencies in several important aspects. The findings highlight the active role of legislative and administrative mechanisms in the promotion of these new forms of administrative law; and they shed light on the transformations that administrative law norms undergo in the age of third-party government.

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New forms of administrative law in the age of third-party government

In the spirit of new public management and new governance concepts, states have shifted from hierarchical and bureaucratic models of welfare administration to more flexible and market‐oriented arrangements. As part of this transformation, states designed new accountability structures to cope with the accountability challenges of these administration regimes. The article examines the suitability and effectiveness of these new structures of accountability through an in‐depth case study of the Wisconsin Works program, one of the most prominent experiments in new governance methods of welfare administration. The article shows that, during a decade of implementation, the Wisconsin Works program shifted back to a centralized and bureaucratized style of administration. The article analyzes the underlying forces that led to re‐bureaucratization. It suggests that relatively tight methods of control are inherent in the administration of such complex and politically sensitive welfare programs.

https://www.jstor.org/stable/10.1086/653454

Re‐Bureaucratizing Welfare Administration

The study explores the accountability implications of the increasingly privatized and marketized models of welfare governance. Privatization of public services radically destabilizes our concepts of accountability. While on the one hand, accountability deficits are created as traditional public accountability systems become less relevant; on the other hand, new market and results-based forms of accountability emerge. In order to examine how accountability is safeguarded under privatized activation, the study provides an in-depth look at private contractors' accountability in the case of activation in Israel. It finds that results-based accountability mechanisms were perceived as insufficient to legitimize contractors' discretion; and sometimes they even intensified accountability concerns. In practice, significant traditional public accountability requirements were extended to the private contractors, creating a hybrid public-private model of accountability. The article discusses the contradictory dynamics leading to the development of this hybrid accountability model and the tensions and instabilities it produces. It closes by stressing the need for more research into activation accountability regimes and their complexity.

The Public Accountability of Privatized Activation – The Case of Israel

1. Introduction PART I: DELEGATION IN CONTEXT 2. The Jurisdictional Context of Private Delegation 3. The Benefits and Challenges of Private Delegation PART II: CONTROLS ON DELEGATION 4. Constitutional Controls on Delegation 5. Legislative and Regulatory Controls on Delegation PART III: CONTROLS ON PRIVATE PARTIES 6. Human Rights Controls on the Delegate 7. Administrative Law Controls on the Delegate 8. Private Law Controls on the Delegate PART IV: COMPARISONS, LAW, AND DELEGATION 9. Conclusion

Delegation of governmental power to private parties : a comparative perspective

Delegation of Governmental Power to Private Parties

This Article adopts a comparative perspective on the use of privatization by governments in the welfare context. It begins by reviewing the extent of welfare privatization in the US, the UK, and Ireland, considering notable examples such as privatized welfare-to-work schemes and residential care. For example, the question of privatized welfare accommodation in the UK has resulted in significant litigation and a major judgment on privatization handed down by the House of Lords in 2007. The Article turns to a consideration of the challenges that arise from using privatization in the welfare context from the perspective of i) accountability and ii) human rights. The ways in which the different jurisdictions respond to the challenges of welfare privatizationand the lessons to be learned from those responsesare then assessed. Overall, it is argued that judicial or doctrinal responses to privatization are often inadequate and the extent to which there exist alternative mechanisms to ensure accountability and human rights protection in the context of welfare privatization are explored.

Privatization and Welfare: A Comparative Perspective

Participation and Expertise: Judicial Attitudes in Comparative Perspective

The aim of this chapter is to assess what, if anything, administrative law can demonstrate about multi-level administration in the European Union and the United States. The particular focus of the examination is not on the content of administrative law in each legal order, but rather on the impact of EU and US federal administrative law on the Member States and US States respectively. It will be seen that, while US federal administrative law has primarily only influential effect on US States, EU administrative law is often binding on Member States. This observation challenges presumptions often made, particularly in political science, as to the degrees of inter-penetration in administration in the EU and the US. It will be argued that the cause of divergence is largely derived from differing judicial attitudes as to the fundamental tenets of the co-operation between the different levels of administration, and indeed, more general understandings of federalism in the two jurisdictions. In this way, this study also provides a useful prism through which to consider integration in the EU and US more broadly.

Catherine M Donnelly

Papers

Delegation of governmental power to private parties : a comparative perspective

Delegation of Governmental Power to Private Parties

Privatization and Welfare: A Comparative Perspective

Participation and Expertise: Judicial Attitudes in Comparative Perspective

Administrative Law and Multi-Level Administration: An EU and US Comparison