Academic journal article The George Washington International Law Review

Government Accountability in Europe: A Comparative Assessment

Academic journal article The George Washington International Law Review

Government Accountability in Europe: A Comparative Assessment

Article excerpt


This Paper will compare the institutions and law of government accountability in England, France, and Romania. It will also examine the manner in which each country handles certain representative instances of litigation: applications for judicial review; litigation of government contract disputes, non-commercial government torts; and takings claims. Finally, it will explore the way in which two supra-national institutions, the European Court of Justice and the European Court of Human Rights, have influenced government accountability in each of the three countries. The choice of England, France, and Romania gives the flavor of such developments in three distinct legal orders. England and France represent the approaches of the common and civil law, respectively, and also illustrate dualist and monist approaches to the enforcement of international obligations. The review of Romanian law offers one perspective on the law of government accountability in a former Communist bloc country that now seeks entry into the European Union.


A. England and the Rule of Law

As a parliamentary democracy, England relies upon a ministerial system of government that runs the country subject to the oversight of Parliament and the electorate.1 Although the Queen remains the country's titular monarch, executive power resides in the Prime Minister2 and the ministers who run the various departments of the government.3 The judicial system includes local magistrates and justices of the peace, a variety of specialized administrative tribunals, and the various departments of the Supreme Court of Judicature.4 These departments include the Court of Appeal and the High Court.5 The High Court acceded to much of the supervisory authority of King's Bench and now presides over the all-purpose action for judicial review that provides the framework within which individuals seek review of administrative action.6 The law lords, sitting as the House of Lords, act as the court of last resort and hear appeals from the Supreme Court as well as from the supreme courts of Northern Ireland and Scotland.7

England continues to adhere to a robust principle of parliamentary supremacy.8 As a practical matter, parliamentary sovereignty helps to explain both the absence of judicially enforceable constitutional limits on Parliament and the country's dualist refusal to regard international treaties as binding in domestic law except to the extent specified in an incorporating act of Parliament.9 Courts still exercise a degree of control over the interpretation of legislation and typically presume an unwillingness on Parliament's part to invade certain cherished features of England's unwritten constitution.10 It remains true, nonetheless, that a clear statement by Parliament controls, even if it works a fundamental change in the structure of government or the rights of individuals.11

The judicial role in securing government accountability in England thus consists less of limiting the authority of Parliament than of overseeing the functions of the executive branch. Here, the maxim that the "King (or Queen) can do no wrong" remains true,12 but as a practical matter operates only in the narrow sphere of lawsuits brought against the Queen in her private capacity.13 In other realms, the government or Crown can clearly commit wrongs that the courts have the power to review and remedy. As a matter of history, England developed three principal mechanisms with which to control public authorities. First, the court of King's Bench developed the so-called prerogative writs of mandamus, certiorari, prohibition, quo warrante, and habeas corpus, all of which issued in the king's name and secured review of official action.14 Second, the courts entertained ordinary actions at common law-including trespass, negligence, nuisance, and false imprisonment-against Crown officers. …

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