Auby, Jean-Bernard --- "Contracting Out and ‘Public Values’: A Theoretical and Comparative Approach" [2010] ELECD 833; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 30

Section Title: Contracting Out and ‘Public Values’: A Theoretical and Comparative Approach

Author(s): Auby, Jean-Bernard

Number of pages: 13

Extract:

30 Contracting out and `public values': a theoretical
and comparative approach
Jean-Bernard Auby


When `public tasks' are entrusted to private actors through contracts ­ be they `Private
Finance Initiative' (PFI) contracts in Great Britain, `concesiones de obras publicas' in
Spain, `délégations de service public' in France, public-private partnerships of various
kinds elsewhere ­ how can we ensure that these tasks are performed in ways that respect
`public values'? By that, I mean, of course, the core legal principles that public bodies
must themselves respect when they act directly. These principles are both substantive
(such as respect for fundamental rights, transparency, non-discrimination, or propor-
tionality) and procedural (such as due process, or notice and comment rulemaking).
This question is neither quite new nor particularly old. It raises intellectual and legal
conundrums that administrative law must confront if it is to respond to current devel-
opments in state/society relations. It is, one might say, a characteristically post-modern
administrative law question.
The chapter is organized as follows. Section 1 defines the basic, generic risks inher-
ent in contracting out, so that my comparisons can really focus on comparable matters.
Section 2 argues that one must distinguish between two different ­ although related ­
problems: those that concern applicability and those that concern enforcement. Section
3 then claims that all legal systems, and, most importantly, all systems of administrative
law, find these problems difficult to solve effectively. In conclusion, Section 4 sketches out
some hypotheses that could explain why administrative law ...