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The universality of public administration in the modern world has led to the mistaken belief that accountability and fairness in administration can be achieved everywhere through the same practices, laws, and institutions. Policymakers and scholars have failed to recognize that the choice between a constitution that concentrates authority in one government body -- parliament -- and a separation of powers constitution that disperses authority among independent public institutions, has far-reaching ramifications for the design of good public administration. The first choice, whether to concentrate or disperse authority, is often not a choice at all but rather a result dictated by the need to guarantee certain communities within a polity permanent institutional expression and power in the lawmaking process. The second choice, how to foster accountable and fair government administration, is indeed a choice and one that should be made wisely.
Accountability in public administration is guaranteed by the power to appoint and remove governments in parliamentary governments, by independent parliamentary oversight activities and administrative procedure in separation of powers governments. Fairness and interest group representation in public administration is promoted through informal consultation between government officials and interest groups in parliamentary governments, through legal rights to information, participation, and judicial review in separation of powers governments. In the American separation of powers system, I have argued that the administrative procedure of notice and comment fosters both of these values in the rulemaking domain.
In the beginning of the paper, I characterized the European Community as a separation of powers system. Based on this characterization and the recognition that that such systems face distinct problems in designing administration that is accountable to an independent legislative branch and fair to the pluralist constellation of interest groups that influence lawmaking, I argued that Community rulemaking does not measure up to liberal democratic standards of good administration. Rather, I urged European lawmakers to look to rulemaking procedure in the United States as a possible means of improving fairness and accountability in comitology. Then, I described the American law of notice and comment rulemaking and compared it to comitology to give a better idea of how notice and comment would change Community rulemaking. Finally, after critically evaluating the flaws of the American system, I put forward a concrete proposal for notice and comment in the Community, slightly modified to reduce the role of courts and interest groups.
The Comitology Decision of 1999 signficantly improved Community rulemaking. Parliament is now in a better position to monitor administrative action and ensure that its policy choices are executed as intended. Although the full constellation of interests that influence policy formulation are still not directly represented in policy implementation, the public has greater access to information than before, and therefore can begin to participate in the process. By going one step further and creating more rights to information, participation, and judicial review, the Community may come a little closer to solving the problems distinct to its separation of powers constitution. Admittedly, reform in this direction might lead to an increase in special interest capture, and, more seriously, a slower administrative process. This, however, is the price that must be paid for democratic accountability and interest representation in Community administration.