The role of administrative Law in promoting accountability in public-private partnerships
🏛️ Administrative Law and Accountability in Public-Private Partnerships (PPPs)
I. Introduction
Public-Private Partnerships (PPPs) involve collaboration between government entities and private sector organizations to finance, build, and operate public infrastructure or services (e.g., roads, hospitals, schools, water systems).
Administrative law governs the actions of public authorities, ensuring legality, transparency, and accountability in decisions—especially critical when private entities take on public functions.
⚖️ Why Administrative Law is Important in PPPs:
Ensures transparency in project approval and procurement.
Provides procedural fairness in decision-making and contracting.
Enables judicial review of administrative decisions.
Regulates discretion of officials and partners.
Promotes public participation and access to information.
II. Core Administrative Law Principles in PPPs
| Principle | Application in PPPs |
|---|---|
| Legality | Agencies must act within their legal authority. |
| Transparency | Competitive bidding, public disclosures, access to contracts. |
| Procedural Fairness | Fair hearing before license revocation or contract termination. |
| Judicial Review | Courts can review improper or unlawful administrative actions. |
| Accountability | Agencies and partners must follow rules and can be held responsible. |
III. Key Case Law Illustrating Administrative Law in PPP Contexts
1. 🔍 Afrox Healthcare Ltd v. Strydom, 2002 (6) SA 21 (SCA)
Jurisdiction: South Africa
Context: Although primarily a contract case, it highlights the tension between private healthcare providers (in PPPs) and public accountability in service delivery.
Facts:
Strydom signed a hospital admission form limiting the hospital’s liability. The hospital was operated by a private company under a public health system.
Issue:
Was the limitation of liability clause enforceable in a context involving a public service?
Holding:
The court emphasized the public interest and duties of private providers offering public health services.
Even private entities operating under PPPs have obligations that align with public service standards.
Explanation:
The case recognized that private partners in PPPs cannot fully escape public law responsibilities. This promotes accountability even when services are outsourced.
2. 🏗 All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487
Jurisdiction: India
Context: Challenges to tariff revisions in a PPP-based power project.
Facts:
A private power company in a PPP arrangement sought tariff hikes. The regulatory commission allowed it, and stakeholders challenged it.
Issue:
Was the regulatory body’s approval of the tariff revision in accordance with law?
Holding:
The Supreme Court ruled that administrative agencies must ensure regulatory oversight and transparency in PPPs.
Regulatory decisions must adhere to statutory criteria and public interest.
Explanation:
The case demonstrates that regulatory commissions (administrative bodies) play a vital role in monitoring and reviewing actions by private partners. This upholds administrative accountability.
3. ⚖️ R (on the application of Chandler) v. Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011
Jurisdiction: United Kingdom
Context: Judicial review of government funding of academies (semi-private schools) under a PPP model.
Facts:
Chandler sought judicial review of government funding for faith-based academies, arguing a breach of public law principles.
Issue:
Could the use of public funds in PPP-like education models be challenged on public law grounds?
Holding:
The Court of Appeal ruled that public funding and control render such arrangements subject to public law standards, including judicial review.
Even where delivery is private, government involvement triggers administrative law oversight.
Explanation:
This case affirms that administrative law applies when public functions are carried out by private entities, especially when public funds are involved.
4. 💼 Council of Civil Service Unions v. Minister for the Civil Service (GCHQ Case), [1985] AC 374
Jurisdiction: United Kingdom
Context: Widely cited for laying the groundwork of judicial review of executive actions, including those affecting PPPs.
Facts:
Civil servants at GCHQ were denied union membership rights by an executive order. This was challenged on administrative law grounds.
Holding:
The House of Lords held that administrative decisions could be reviewed for illegality, irrationality, and procedural impropriety.
Even in matters involving discretion, public law principles apply.
Explanation:
Although not about a PPP specifically, the GCHQ case is foundational. It set the standards for reviewing administrative actions, including in PPP decisions involving public interest and executive discretion.
5. 🏢 Airservices Australia v. Canadian Airlines International Ltd (1999) 202 CLR 133 (HCA)
Jurisdiction: Australia
Context: Dispute over charges for air navigation services provided by a statutory body under commercial arrangements.
Facts:
A statutory agency (Airservices Australia) charged airlines for services. One airline challenged the legality of the charges.
Issue:
Were the charges legally imposed, and was the decision subject to judicial review?
Holding:
The High Court ruled that the agency's commercial powers were still subject to administrative law constraints.
Accountability requires compliance with enabling statutes and fairness.
Explanation:
This case reflects that statutory bodies in commercial arrangements (like PPPs) remain accountable under administrative law. Legal compliance is not waived by commercialization.
IV. Additional Case Mentions (Brief)
**6. Datafin Case – R v. Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815 (UK)
Key Point:
Even non-governmental bodies exercising public functions (like regulating private sector takeovers) can be subject to judicial review.
**7. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 (India)
Key Point:
Although not a PPP case, it affirms the State’s duty to ensure access to justice and public accountability in service provision, applicable when services are delivered through PPPs.
V. Conclusion
Administrative law plays a critical role in ensuring accountability in PPPs by:
Requiring agencies to follow lawful procedures when engaging private partners.
Ensuring private entities that perform public duties are held to public law standards.
Allowing courts to review decisions made under PPPs for legality, fairness, and reasonableness.
Promoting regulatory oversight by agencies that monitor pricing, quality, and compliance.
Empowering citizens and organizations to challenge abuses through judicial review and administrative tribunals.
RELATED Blog
0 comments