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G O O D G OV E R N A N C E
Good Governance
Concept and Context
HENK ADDINK
1
1
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This book is for Julia
Preface
This book deals with good governance, and more specifically with its concept and
context. The last decades have witnessed the emergence of many principles of good
governance. These principles function in different contexts and their manifestations
are often as different as the contexts themselves. To comprehend this hotchpotch of
principles, the overarching idea of good governance is explained in this book. What is
good governance as a concept and how does it relate to the rule of law and democracy?
Thereby, six particular principles are articulated as the core principles of good govern-
ance: properness, transparency, participation, effectiveness, accountability, and human
rights. These six principles are understood as the substantive core of good governance,
although different jurisdictions can assign different formal names to these principles.
In this book, it is argued that good governance has risen as a third dominant con-
cept in the modern state. Alongside the rule of law and democracy, good governance is
becoming increasingly important for the legitimacy of state authorities, as the former
predominant function of the nation state gradually declines. However, good govern-
ance is also used in nongovernmental contexts, and this is briefly mentioned over the
course of the eighteen chapters. This book remains primarily concerned with the state
and its relationship with the citizens, but also its relevance for good governance on a
regional and international level.
The book consists of three parts. The first part explores good governance from a
rather abstract perspective in which general aspects of good governance are elaborated
upon, such as the concept of good governance, the multilevel developments (national,
regional, and international), and the conceptual links between good governance and
the rule of law and democracy. The second part is focused on an in-depth analysis of
the six individual principles of good governance, based on four criteria: the develop-
ments, the concept, the institutions involved, and the sources. The third part deals
with the application of the principles of good governance on the national level. In
this part, we give a description of their application in each region, as well as country
by country, using the same structure and with a strong focus on the countries of the
European Union. Similarly, we also look at three countries in other regions of the
world: Australia, Canada, and South Africa. It is my hope and expectation that profes-
sionals and students will profit from the work presented here, so that good governance
becomes properly consolidated in law and governance.
In preparing this book I have benefited from the support of many colleagues and
friends, too numerous to mention here. My thanks go to Paul Craig who stimulated
my interest in this area and has been a steadfast supporter of this project and a con-
stant source of inspiration. I am grateful to (former) Dean Timothy Endicott and the
Faculty of Law of Oxford University for hosting me and giving me the opportunity to
spend long hours in the library and have discussions with several staff members. Special
thanks also go to my colleagues, including (former) (vice)deans Henk Kummeling
and Ige Dekker, here at the Faculty of Law, Economics and Governance of Utrecht
University, who made this study possible and with many of whom I have had inter-
esting discussions.
I also want to thank the members of the ‘good governance research group’ for their
inspiring discussions on the topic. PhD studies by members of this group have been
published or are on the way to publication: ‘Good Governance and Enforcement, the
Principle of Transparency’, ‘Good Governance and Public Contracts, the Principle of
viii Preface
Effectiveness’, ‘Ombudsman and Good Governance, the Principle of Participation’,

‘Principles of Good Governance and Public Procurement’, ‘Good Governance and
Integrity and Principles of Good Supervision’.
I am very grateful for the help from several students of the course Principles of Good
Governance and student assistants and especially from Ms Mariette van der Tol and
Mr George Necsa-Damacus. Many thanks also to Julia for being there and bearing
with me when writing this book.
Henk Addink
October 2018
Contents
Table of Cases xiii
Tables of Legislation, Treaties, and Conventions xvii
List of Abbreviations xxiii
I. DEVELOPING THE CONCEPT OF GOOD

G OV E R N A N C E
1. Good Governance: An Introduction 3
1. Good Governance: A Cornerstone of the Modern State 3
2. Good Governance and Law 5
3. Good Governance and Human Rights 7
4. Good Governance and the Main Developments 9
5. Structure of the Three Parts of this Book 12
6. Conclusions 13
2. An Overview of Good Governance 15

1. Need for Good Governance 15
2. Concept of Good Governance 16
3. Specification of the Principles of Good Governance 19
4. Institutions Involved within a Framework of Checks and Balances 20
5. Relevant Sources of Good Governance 23
6. Enforcement of Good Governance 23
7. Conclusions 24
3. Good Governance on Multiple Levels 25

1. Good Governance on the National Level: The Netherlands 25
2. Good Governance on the National Level in Europe 32
3. Good Governance and the Europeanization of National Law 41
4. Good Governance on the European Union Level 43
5. Good Governance on the International Level 48
6. Conclusions 53
4. Principles of Good Governance: The Theoretical Perspective 55

1. Fundamental Aspects of the Principles of Good Governance 55
2. Dworkin and Hart 56
3. The Relationship between Law and Values 59
4. The Nature of Principles in the Legal Theory 61
5. Good Governance and Integrity 64
6. Concepts of Values 71
7. Conclusions 73
5. The Rule of Law and Good Governance 75

1. Rule of Law in the Classical Liberal Tradition 75
x Contents
2. Different Historical Roots and Traditional Perspectives 80

3. Rule of Law and Rechtsstaat: Specification of Differences 81
4. Rule of Law and Rechtsstaat: Formal and Substantial Perspectives 83
5. Difficulties and Developments of the Traditional Rule of Law 87
6. The Role of Good Governance Related to these Developments 89
7. Conclusions 90
6. Democracy and Good Governance 91

1. Democracy: Different Forms of Government 91
2. Democracy: Direct and Representative 93
3. Democracy and Transparency 94
4. Democracy and Participation 95
5. Conclusions 96
I I . G O O D G OV E R N A N C E : S P E C I F I C AT I O N B Y
PRINCIPLES
7. The Principle of Properness 99
1. Development of the Principle of Properness 99
2. The Concept of Properness 100
3. Specification of the Concept 101
4. Institutions Involved 109
5. Conclusions 109
8. The Principle of Transparency 111

1. The Development of the Principle of Transparency 111
2. The Concept of Transparency 112
5. Sources of the Principle of Transparency 120
6. Conclusions 127
9. The Principle of Participation 129

1. The Development of the Principle of Participation 130
2. The Concept of Participation 131
5. Sources of the Principle of Participation 137
6. Conclusions 139
10. The Principle of Effectiveness 141

1. Introduction 141
2. Development of the Principle of Effectiveness 143
3. The Concept of Effectiveness 145
4. Specification of this Concept 149
6. Sources of the Principle of Effectiveness 154
7. Conclusions 156
Contents xi
11. The Principle of Accountability 157

1. Development of the Principle of Accountability 157
2. The Concept of Accountability 158
5. Sources of the Principle of Accountability 168
6. Conclusions 170
12. The Principle of Human Rights 171

1. Development of the Principle of Human Rights 171
2. The Concept of the Principle of Human Rights 172
5. Sources of the Principle of Human Rights 176
6. Conclusions 182
I I I . I M P L E M E N TAT I O N O F T H E P R I N C I P L E S
O F G O O D G OV E R N A N C E O N T H E N AT I O N A L , E U ,
A N D I N T E R N AT I O N A L L E V E L
13. Implementation of the Principles of Good Governance on the
National Level: General Discussion 185
1. Good Governance: The Need and the Practical Relevance 186
2. Concept and Principles of Good Governance and Integrity 187
3. Studies on the Implementation of the Good Governance
Principles. Main Elements of the EU Country and
the Non-EU Country Studies 188
4. Five Regions in Europe and Three Countries in Three Regions
outside Europe: Africa (South Africa), America (Canada),
and Oceania (Australia)—Three Groups of Values and
Practices of Good Governance 189
5. Different Developments in the Practices of Different Countries 192
6. Cases about the Implementation of Good Governance Principles 193
7. Conclusions 195
14. Implementation of the Principles of Good Governance on

the National Level in the EU 200
1. General Remarks and Results 200
2. Implementation of Good Governance in Northern Europe 201
3. Implementation of Good Governance in Western Europe 202
4. Implementation of Good Governance in Southern Europe 203
5. Implementation of Good Governance in Central Europe 204
6. Implementation of Good Governance in the United Kingdom
and Ireland 206
7. Conclusions 206
xii Contents
15. Implementation of the Principles of Good Governance on

the National Level outside the EU 209
1. General Remarks on Good Governance outside Europe 209
2. Implementation of the Good Governance Principles in Australia 209
3. Implementation of the Good Governance Principles in Canada 228
4. Implementation of the Good Governance Principles in
South Africa 236
5. Conclusions 241
16. Implementation of Good Governance Principles on
the European Level 243
1. Implementation of the Good Governance Principles by European
Institutions 244
2. Implementation of the Good Governance Principles by the EU
Court of Justice 245
3. Implementation of the Good Governance Principles by the EU
Ombudsman 255
4. Conclusions 261
17. Implementation of the Good Governance Principles on

the International Level 263
1. Good Governance in International Organizations 263
2. Good Governance in International Case Law 264
3. Good Governance in Case Law: The European Court
of Human Rights 265
4. Conclusions 266
18. Conclusions on Good Governance: Concept and Context 270

1. Part I: The Development of the Concept of Good Governance 270
2. Part II: The Specification of the Principles of Good Governance 273
3. Part III: The Implementation of the Principles of Good
Governance 276
Bibliography 281
Index 307
Table of Cases
UNITED KINGDOM
A v Secretary of State for Home Department [2004] UKHL 56�� 85–86
A v Secretary of State for Home Department (No 2) [2005] UKHL 71�� 85–86
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 224��225
Entick v Carrington (1765) 19 St Tr 1029�� 76–77
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952��85
Malone v Metropolitan Police Commissioner [1979] Ch 344��84
Philips v Eye (1870) LR 6 QB 1�� 84–85
EUROPEAN UNION
European Court of Justice
ACF Chemiefarma NV v Commission of the European Communities, C-41/69,
ECLI:EU:C:1970:71, [1970], ECR 661 �� 246–47
Algera v Common Assembly, 7/56, 3/57 to 7/57, ECLI:EU:C:1957:7, [1957], ECR 39�� 246–47
Alvis v Council of the European Union, 32/62, ECLI:EU:C:1963:15, [1963] ECR 107�� 246–47
Bressol, Chaverot and Others v Governement de la Communauté Française, reference to Cour
Constitutionnelle (Belgium), C-73/08, ECLI:EU:C:2009:396, [2010]ECR I-02735 ��194
Coditel Brabant SA v Communie d’Uccle and Région de Bruxelles-Capitale, C-324/07,
ECLI:EU:C:2008:621, [2008] ECR I-8457 ��246
Commission of the European Communities v Belgium, C-87/94, ECLI:EU:C:1996:321,
[1996] ECR I-2043 �� 123–24
Commission of the European Communities v Camar Srl and Tico Srl, C-312/00 P,
ECLI:EU:C:2002:736, [2002] ECR I-11355�� 247–48
Commission of the European Communities v Fresh Marine Company, C-472/00,
ECLI:EU:C:2003:399, [2003] ECR I-7541 ��44–45, 146
Commission of the European Communities v Sytraval, C-367/95, ECLI:EU:C:1998:154,
[1998] ECR I-1719 �� 246–47
Commune de Sausheim v Pierre Azelvandre, C-552/07, ECLI:EU:C:2008:772, [2009]
ECR I-00987��246
Coname v Comune di Cingia de’ Botti, C-231/03, ECLI:EU:C:2005:487, [2005]
ECR I-7287��246
Corus UK Ltd, formerly British Steel plc v Commission of the European Communities,
C-199/99 P, ECLI:EU:T:2004:219, [2003] ECR I-11177�� 246–47
De Briey v Commission of the European Communities, 25/80, ECLI:EU:C:1981:56,
[1981] ECR 637�� 246–47
Der Grüne Punkt-Duales System Deutschland GmbH v Commission of the European
Communities, C-385/07 P, ECLI:EU:C:2009:456, [2009] ECR I-6155�� 247–48, 250
European Parliament v Gutierrez de Quijano y Llorens, C-252/96 P, ECLI:EU:C:1998:551,
[1998] ECR I-7421 ��44–45, 146
Evn AG v Austria, C-448/01, ECLI:EU:C:2003:651, [2003] ECR I-14527�� 123–24
Evropaiki Dynamiki—Proigmena Systemata Tilepikoinion Pliroforikis kai Tilmatikis AE v
Commission of the European Communities, C-597/11P Case T-345/03,
ECLI:EU:T:2015:168, [2008] ECR II-341��254
F v Commission of the European Communities, C-228/83, ECLI:EU:C:1985:28, [1985]
ECR 00275��178
Fiskano AB v Commission of the European Communities, C-135/92, ECLI:EU:C:1994:267,
[1994] ECR I-02885 ��178
GAT v ÖSAG, C-315/01, ECLI:EU:C:2003:360, [2003] ECR I-6351 ��246
Hercules Chemicals NV v Commission of the European Communities, C-51/92 P,
ECLI:EU:C:1999:357, [1999] ECR I-04235�� 246–47
xiv Table of Cases
Hoechst AG v Commission of the European Communities, 46/87 and 227/88,
ECLI:EU:C:1989:337, [1989] ECR 2859�� 246–47
Hoffmann-La-Roche and Co AG v Commission of the European Communities, 85/76,
ECLI:EU:C:1979:36, [1979] ECR 461�� 246–47
Italian Republic and Donnici v European Parliament, C-393/07 and C-9/08,
ECLI:EU:C:2009:275, [2009] ECR I-3679 �� 248–49
Kadi and Al Barakaat International Foundation v Council of the European Union,
C-402/05 P and C-415/05 P, ECLI:EU:C:2008:461, [2008] ECR I-6351 �� 246–47
Köbler v Republik Österreich, C-224/01, ECLI:EU:C:2003:513, [2003] ECR I-10239 ��250
La Cascina Soc. coop. arl and Others and Ministero della Difesa and Others, C-226/04 and
Case C-228/04, ECLI:EU:C:2006:94, [2006] ECR I-1347 ��246
Laboratoires Pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the
European Communities, C-352/98 P, ECLI:EU:C:2000:361, [2000] ECR I-05291��179
Landbrugsministeriet v Steff-Houlberg Export, C-366/95, ECLI:EU:C:1997:223,
[1998] ECR I-02661 ��195
Lombardini SpA v ANAS and Mantovani SpA v ANAS, C-285/99 and C-286/99,
ECLI:EU:C:2001:640, [2001] ECR I-09233��246
Netherlands v Commission of the European Communities, C-48/90 and C-66/90,
ECLI:EU:C:1992:63, [1992] ECR I-00565 ��44
Netherlands v Council of the European Union, C-58/94, ECLI:EU:C:1996:171,
U:C:1996:171; [1996] ECR I-2169��118
Netherlands and Gerard van der Wal v Commission of the European Communities,
C-174/98 P and C-189/98 P, ECLI:EU:C:2000:1, [2000] ECR I-1�� 248–49
Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG, C-458/03,
ECLI:EU:C:2005:605 [2005] ECR I-8585��246
SIAC Construction Ltd v County Council of the County of Mayo, C-19/00,
ECLI:EU:C:2001:553, [2001] ECR I-7725 ��246
Sison v Council of the European Union, C-266/05 P, ECLI:EU:C:2007:75,
[2007] ECR I-1233 �� 248–49
Solvay and Cie v Commission of the European Communities, C-27/88,
ECLI:EU:C:1989:388, [1989] ECR 3355��178
Sweden v Commission of the European Communities, C-64/05 P,
ECLI:EU:C:2007:802, [2007] ECR I-11389�� 248–49
Sweden and Turco v Council of the European Union, C-39/05P and C-52/05P,
ECLI:EU:C:2008:374, [2008] ECR I-04723�� 119, 248–49
T and A Ispas v Direcția Generală a Finanțelor Publice Cluj, Case C-298/16,
ECLI:EU:C:2017:650, �� 8
Technische Universität München v Hauptzollamt München-Mitte, C-269/90,
ECLI:EU:C:1991:438, [1991] ECR I-05469��178
Telaustria Verlags GmbH v Telekom Austria AG, C-324/98, ECLI:EU:C:2000:669,
[2000] ECR I-10745 ��246
Traghetti del Mediterraneo SpA v Italy, C-173/03, ECLI:EU:C:2005:602, [2006] ECR I-1209�� 250
Transocean Marine Paint Association v Commission of the European Communities, 17/74,
ECLI:EU:C:1974:106, [1974] ECR 1063�� 246–47
UFEX and others v Commission of the European Communities, C-119/97 P,
ECLI:EU:C:1999:116, [1999] ECR I-1341 ��44–45, 146
Unitron Scandinavia A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri, C-275/98,
ECLI:EU:C:1999:567 [1999] ECR I-8291�� 123–24, 246
Universale-Bau AG v Entsorgungsbetriebe Simmering GmbH, C-470/99,
ECLI:EU:C:2002:746, [2002] ECR I-11617�� 123–24, 246
Van Eick v Commission of the European Communities, 35/67, ECLI:EU:C:1968:39,
[1968] ECR 489�� 246–47
Court of First Instance

Dresdner Bank AG and Others v Commission of the European Communities, T-44/02 OP,
T-54/02 OP, T-56/02 OP, T-60/02 and T-61/02 OP, ECLI:EU:T:2006:271, [2006]
ECR II-3567�� 246–47
Table of Cases xv
Evropaiki Dynamiki—Proigmena Systemata Tilepikoinion Pliroforikis kai Tilmatikis AE v
Commission of the European Communities, T-345/03, ECLI:EU:T:2015:168 ��246
Groupement des Cartes Bancaires ‘CB’ and Europay International SA v Commission of
the European Communities, T-39/92 and 40/92, ECLI:EU:T:1994:20,
[1994] ECR II-49�� 246–47
Hautala v Council of the European Union, T-14/98, EU:T:1999:157; ECLI:EU:T:1999:157,
[1999] ECR II-2489�� 118–19
Internationaler Tiershutz-Fonds (IFAW) GmbH v Commission of the European
Communities, T-168/02 [2004] ECR II-04135 �� 119–20
JCB Service v Commission of the European Communities, T-67/01, ECLI:EU:T:2004:3,
[2004] ECR II-49�� 247–48
Kish Glass and Co Ltd v Commission of the European Communities, T-65/96,
ECLI:EU:T:2001:261, [2000] ECR II-01885��178
Kuijer v Council of the European Union, T-211/00, ECLI:EU:T:2002:30, [2002] ECR II-488�� 119
Max.mobil Telekommunikation Service GmbH v Commission of the European
Communities, T-54/99, ECLI:EU:T:2002:20, [2002] ECR II-313 �� 247–48
Messina v Commission of the European Communities, T-76/02 [2003],
ECLI:EU:T:2003:235, ECR II-03203�� 119–20
Meyer v Commission of the European Communities, T-333/01 [2003],
ECLI:EU:T:2003:32, ECR II-119��44–45, 146
Rothmans International BV v Commission of the European Communities, T-188/97,
ECLI:EU:T:1999:156, [1999] ECR II-2463�� 248–49
Sison v Council of the European Union, T-110/03, T-150/03, and T-405/03,
ECLI:EU:T:2005:143, [2005] ECR II-01429�� 119–20
Stork Amsterdam BV v Commission of the European Communities, T-241/97,
ECLI:EU:T:2000:41, [2000] ECR II-00309�� 178–79
Turco v Council of the European Union, T-84/03, ECLI:EU:T:2004:339, [2004]
ECR II-04061�� 119–20
UPS Europe v Commission of the European Communities, T-127/98,
ECLI:EU:T:1999:167, [1999] ECR II-02633��44–45, 146
Verein für Konsumenteninformation v Commission of the European Communities,
T-2/03, ECLI:EU:T:2005:125, [2005] ECR II-01121�� 119–20
INTERNATIONAL
Australia
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307��225
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 �� 225–26
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634�� 225–26
Greens v Daniels (1977) 33 ALR 1��225
Griffith University v Tang (2005) 213 ALR 724��225
McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187��219
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ��211
Minister for Immigration and Multicultural Affairs, Re; Ex Parte Miah [2001] HCA 22�� 225–26
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7�� 212–13
Refugee Tribunal, Re; Ex Parte Aala (2000) 204 CLR 82�� 212–13
Schlieske v Minister of Immigration and Ethnic Affairs [1988] FCA 48 �� 212–13
Canada
Canada (Attorney General) v Bedford, 2013 SCC 72 ��231
Egan v Canada [1995] 2 SCR 513��211
Hunter v Southam Inc [1984] 2 SCR 145��231
East African Court of Justice

Attorney General of the Republic of Rwanda, Appeal no 1 of 2012 (EACJ, Appellate
Division, June 2012)�� 264–65
xvi Table of Cases
Sebalu v Attorney General of the Republic of Uganda, Ref No 1 of 2010, Judgment
(EACJ, 30 June 2011)�� 264–65
European Court of Human Rights

Ahmut v Netherlands, 21702/9328, 28 November 1996 ��266
Czaja v Poland, 5744/05, 2 October 2012 �� 23, 61
Fressoz v France, 29183/95, 21 January 1999��122
Gaskin v UK, 10454/83, 7 July 1989 ��122
Gasus Gmbh v Netherlands, 15375/89, 23 February 1995��266
Guerra and others v Italy, 14967/89, 19 February 1998��122
Guja v Moldova, 14277/04, 12 February 2008��266
Maksymenko and Gerasymenko v Ukraine, 49317/07 [2013] ECHR 439�� 265–66
Maritime v Finland, 19235/03, 21 April 2009��266
McGinley and Egan v United Kingdom, 10/1997/794/995-996, 9 June 1998��122
Nsona v Netherlands, 23366/94, 28 November 1996��266
Rysovsky v Ukraine, 29979/04, 20 October 2011��266
Sdruženi Jihočeské Matky v Czech Republic, 19101/03, 10 July 2006��122
Squat v Netherlands, 16034/90, 19 April 1994 ��266
Sunday Times v UK [1979–80] 2 EHRR 245��85
Netherlands, The
Central Appeals Tribunal 7 November 2002, 00/5791 AW, LJN AF3553��70
Central Appeals Tribunal 1 November 2003, 02/1004 AW, 03/1535, LJN AN8809��70
Dutch Supreme Court, 14 January 1949, NJ 1949 nr 557 ��102
Dutch Supreme Court 30 January 1914, W 9149 �� 69–70
Dutch Supreme Court 1 December, NJ 1993, 354 �� 69–70
Dutch Supreme Court 30 May 1995, NJ 1995, 620�� 69–70
South Africa
Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA)��238
Pharmaceutical Manufacturers Association of SA and Another: In re ex parte President
Republic of South Africa 2000 (2) SA 674 (CC)�� 236–38
President of the Republic of South Africa v SARFU 2000 1 SA1 (CC)��236
S v Makwanyane 1995 (6) BCLR 665 (CC)��239
Tables of Legislation, Treaties, and Conventions
UK STATUTES s 14 �� 216
s 15 �� 216
Act of Settlement 1701 (c 2)�� 232 s 16 �� 216
Canada Act 1982 (c 11) s 17 �� 216
Sch B��229, 230
Honours (Prevention of Abuses) Act Austria
1925 (c 72)�� 164–65
Federal Constitutional Law 1920
Human Rights Act 1998 (c 42)�� 85
Art 18(1) �� 180
Art 23(1) �� 180
OTHER NATIONAL LEGISL ATION
Canada
Australia Access to Information Act 1985 (RSC)�� 231–32
Administrative Appeals Tribunal s 2(1)�� 231–32
Act 1975 (Cth) s 4(1)�� 232
s 2 �� 225 s 6 �� 232
s 25(1)�� 225 s 7 �� 232
s 27(1)�� 225 s 30 �� 232
s 43(6)�� 225 s 30(1)�� 232
Administrative Decisions (Judicial Review) British North America Act 1867 ��228, 229–30
Act 1977 (Cth)��211–12, 213, 225 Charter of Rights and Freedoms
s 13 �� 212 1982��228–29, 230, 234
Charter of Human Rights and Responsibilities s 11(d)�� 232–33
Act 2006 (Vic)��214, 215, 216–17 s 15 ��230–31, 235
s 16 �� 217 s 15(1)�� 230–31
s 18 �� 217 s 24 �� 235
Constitution of Australia 1901 (Cth) �� 135 s 24(1)�� 234
s 75(v) �� 226–27 s 24(2)�� 234
Constitution Act 1975 (Vic) Constitution Act 1982��228–29, 235, 241–42
s 13 �� 214–15 Pt I�� 230
Freedom of Information Act 1982 (Cth)�� 210, s 52(1)�� 229–30
211–12, 217–18, 219–20, s 91 �� 229
221–24, 227–28 s 99 �� 232
Pt IV �� 218 s 100 �� 232–33
s 11B �� 218 Criminal Code�� 231
s 15 �� 218 Old Age Security Act 1951�� 231
s 36(3)�� 219 Ombudsman Act 1990 (RSO) �� 234–35
Freedom of Information Act 1989 (NSW) ��220
Freedom of Information Amendment Finland
(Reform) Act 2010 (Cth) ��219–20, 221, Constitution Act 1919�� 201–2
224, 227–28 s 21 �� 187
Sch 1, s 3 �� 221 s 124 �� 187
Government Information (Public Access) General Administrative Procedure
Act 2009 (NSW) ��210, 211–20 Act 2003 �� 201–2
s 3(1)(c)�� 220
s 5 �� 220 Germany
Human Rights Equal Opportunity Basic Law for the Federal Republic of
Commission Act 1986 (SA) �� 214 Germany (Constitution)
Ombudsman Act 1976 (Cth)��136, 211–12 Art 3�� 106
s 5 �� 215–16 Art 20�� 76–77
s 9 �� 216
s 10 �� 136 Greece
s 13 �� 216 Code of Administrative Procedure 1999�� 204
xviii Tables of Legislation, Treaties, and Conventions
Hungary Art 4.2.6�� 104
Fundamental Law Of Hungary Art 4.7�� 101
2011 (Constitution) Art 4.8�� 101
Art 57�� 180 Art 4.23�� 104
Art 4.48�� 104
Ireland Art 5.13�� 103
Local Government Reform Act 2014 �� 206 Art 5.22�� 104
Art 8.77�� 30
Italy Art 8.79�� 113–14
Constitution of the Italian Republic 1947 Government Accounts Act 2001��31, 168
Art 113�� 179 s 51 ��168, 169
s 51(1)�� 168–69
Latvia s 52 �� 168–69
Constitution of Latvia 1922 s 53 �� 169
Art 91�� 106 s 53(1)�� 170
s 54 ��169, 170
Lithuania s 55 �� 169
Constitution of the Republic of s 56 �� 169
Lithuania 1992 s 57 �� 170
Art 25�� 180 s 58 �� 170
Art 33�� 180 s 66(2)�� 168–69
s 67(2)�� 169
Netherlands Municipalities Act 1992�� 135–36
Act on Living Accommodation 1947 �� 102 s 170 �� 130
Constitution for the Kingdom of Penal Code 1881 �� 70
The Netherlands 1815 Art 84�� 69–70
Art 1�� 105–6 Art 177�� 70
Art 19�� 27 Art 177a�� 70
Art 20�� 28 Art 362�� 70
Art 21�� 28 Art 363�� 70
Provinces Act 2014�� 135–36
Art 22�� 28
s 175 �� 130
Art 23�� 28
Public Access to Government
Arts 76-78 �� 20–22
Information Act 1991��28, 31, 115
Art 78a�� 20–22
s 2 �� 28
Art 121�� 113–14
s 3 ��28, 116
Environmental Management
s 8 ��28, 116
Act 2004 �� 28
s 9 �� 116
General Administrative Law Act��15–16, 28,
s 10 ��28, 116–17
29, 30, 31, 100–1, 103, 104, s 10(1)�� 117
109, 110, 115, 135–36, 274 s 10(2)�� 117
Art 2.3�� 108 s 11 ��28, 116, 117
Art 3.2�� 108 Spatial Planning Act 1965�� 28
Art 3.3�� 101–2
Art 3.4��103, 106–7 Poland
Art 3.10�� 137 Constitution of Poland 1997
Art 3.13�� 137 Art 51�� 180
Art 3.24�� 138 Art 61�� 181
Art 3.40�� 115 Art 63�� 181
Art 3.41�� 115 Art 77�� 181
Arts 3.41-3.43 �� 108
Art 3.42�� 115 Portugal
Art 3.46�� 108 Constitution of Portugal 1822
Art 3.47�� 108 Art 22�� 181
Art 3.48�� 109 Art 266�� 181
Art 3.49�� 109 Art 268�� 182
Art 3.50�� 109 Art 271�� 182
Tables of Legislation, Treaties, and Conventions xix
South Africa Art 36�� 179
Constitution of the Republic of Art 39�� 243–44
South Africa 1996��236, 237 Art 40�� 243–44
s 9 ��106, 239, 250 Art 41�� 7, 8–9, 11–12, 47, 119–20,
s 19(5)�� 240 172, 175, 243–44, 246–47,
s 32 �� 240 251–52, 254–55, 261, 278–79
s 33 �� 237 Art 41(1) �� 8
s 33(3)�� 237–38 Art 41(2) ��8, 115–16, 253
s 92(2)�� 240–41 Art 42��119–20, 243–44
Municipal Structures Act 117 of 1998��240–41 Art 43��176, 243–44, 251–52
Promotion of Access to Information Act 2 Art 44�� 243–44
of 2000�� 240 Art 47�� 47, 153, 173–74, 252, 254–55
Promotion of Administrative Justice Act 3 Art 51(1) ��251, 253
of 2000�� 237–38 Art 52�� 253
s 1 �� 238 Art 52(5) �� 253
s 4(1)�� 239 Art 52(6) �� 253
s 6 �� 238 Code of Good Administrative Behaviour
s 10 �� 238–39 2004�� 251, 255–56, 261, 278–79
Regulations on Fair Administrative Pt I�� 256
Procedures. Department of Justice Pt II�� 256
Regulation Gazette no 23674 of Pt III �� 257
31 July 2002�� 239 Arts 1–3��256, 261
Art 3�� 256
Slovakia Arts 4–12��256, 261
Administrative Code 1967�� 205 Art 6�� 256
Art 7�� 256
Spain Art 8�� 256
Constitution of Spain 1978 Art 9�� 256
Art 140�� 133 Art 10�� 256
Law 7/1985, of 1 July 1985, on the rights Art 11�� 256
and freedoms of foreigners in Spain�� 133 Art 12�� 256
Royal Decree 2568/1986, of November Art 13�� 257
28, which approves the Regulation of Arts 13–15��256, 261
Organization, Operation and Legal Art 14�� 257
System of Local Entities �� 133 Art 15�� 257
Art 16�� 257
Sweden Arts 16–19��256, 261
Freedom of the Press Act 1766 �� 95 Art 17�� 257
Art 18�� 257
United States of America Art 19�� 257
Administrative Procedures Act 1946�� 166 Art 20�� 257
American Declaration of Independence Arts 20–21��256, 261
1776�� 172 Art 21�� 257
Constitution of the United States of Art 22�� 257
America 1787�� 82 Arts 22–23��256, 261
Federal Tort Claims Act 1946�� 162–63 Art 23�� 257
National Environmental Policy Act 1970�� 166 Art 24��256, 257, 261
European Charter of Local
Self-Government 1985��33–34, 137
EUROPEAN LEGISL ATION European Social Charter 1961
Part I �� 7t
Treaties and Conventions Art 15�� 7t
Charter of Fundamental Rights of the Art 20�� 7t
European Union 2000 ��33, 46, 172, Art 21�� 7t
173, 199, 243–44, 246, 248, Art 22�� 7t
250, 253, 256, 261, 278–79 Art 27�� 7t
Art 6�� 119 Art 29�� 7t
xx Tables of Legislation, Treaties, and Conventions
Treaty establishing a Constitution for 7 March 2002 on a common
Europe 2004 regulatory framework for electronic
Art III-368�� 255 communications networks and
Art III-398�� 32 services [2002] OJ L 108/33
Treaty establishing the European Art 5�� 123
Community 1957 Art 6�� 123
Art 21�� 176 Directive 2003/4/EC of the European
Art 195��19, 176 Parliament and of the Council of
Art 253�� 175 28 January 2003 on public access to
Art 288�� 175 environmental information and
Treaty of Lisbon 2007�� 11–12, 120, 173, 243, repealing Council Directive
246, 250, 251, 252, 261, 278–79 90/313/EEC [2003]
Art 1(2) �� 252 OJ L 41/26��121, 246
Art 6(1) �� 7 Directive 2003/35/EC of the European
Art 11�� 252 Parliament and of the Council of
Art 15�� 252 26 May 2003 providing for public
Art 16�� 252 participation in respect of the drawing
Treaty of Maastricht 1992��39, 255–56 up of certain plans and programmes
Treaty on the European Union 2007�� 11 relating to the environment and
Art 1�� 175 amending with regard to public
Art 1(2) ��47, 119 participation and access to justice
Art 6�� 248 Council Directive 85/337/EEC and
Art 6(2) �� 46 96/61/EC–statement of the
Art 9�� 47 Commission [2003] OJ L156/17�� 246
Art 16(8) �� 243 31 March 2004 coordinating the
Art 55(1) �� 175 procurement procedures of entities
Art 255(1) �� 119 operating in the water, energy,
Treaty on the Functioning of the European transport and postal services sectors
Union 2007 Art 10�� 123
Art 11(4) ��139, 274–75 31 March 2004 on the coordination
Art 15�� 243 of procedures for the award of
Art 24(4) �� 175 public works contracts, public
Art 228�� 19 supply contracts and public service
Art 245�� 259 contracts [2004] OJ L 134/114
Art 245(2) �� 259 Art 2�� 123
Art 296�� 252 Directive 2008/99/EC of the European
Art 340�� 8 19 November 2008 on the protection
of the environment through criminal
European Directives law [2008] OJ L 328/28�� 120
Council Directive 90/220/EEC of 23/04/ Directive 2014/17/EU of the European
1990 on the deliberate release into the Parliament and of the Council of
environment of genetically modified 4 February 2014 on credit agreements
organisms [1990] OJ L 117/18 for consumers relating to residential
Art 7�� 246 immovable property and amending
Directive 95/46/EC of the European Directives 2008/48/EC and 2013/36/EU
Parliament and of the Council of and Regulation (EU) No
24 October 1995 on the protection of 1093/2010 [2014] OJ L 60/34�� 257–58
individuals with regard to the
processing of personal data and on European Regulations
the free movement of such data Regulation No 17/62: First Regulation
[1995] OJ L 281/31�� 120–21 implementing Articles 85 and 86 of
Directive 2002/21/EC of the European the Treaty [1962] OJ L 13/204
Parliament and of the Council of Art 19(1) �� 255
Tables of Legislation, Treaties, and Conventions xxi
Regulation (EC) No 1049/2001 of the Art 6(1) �� 7t, 177t
European Parliament and of the Art 6(3)(b)-(e) �� 7t, 177t
Council of 30 May 2001 regarding Art 8�� 84, 121, 122, 265–66
public access to European Parliament, Art 10�� 122
Council and Commission documents Art 13��7t, 153, 173–75, 177t
[2001] OJ L 145/43��115, 119–20, 123, Art 14�� 7t, 175, 177t
248, 258–59 Art 16�� 175
Recital 2��119, 248 Art 17�� 7t, 177t
Recital 4��119, 248–49 Art 19�� 7t, 177t
Art 4��115, 119–20 Protocol 1, Art 1�� 265–66
Art 4(5) �� 119–20 General Agreement on Tariffs and
Regulation (EC) No 1367/2006 of the Trade 1947�� 124–25
European Parliament and of the Art X �� 125–26
Council of 6 September 2006 on the Art X.1�� 126–27
application of the provisions of the Art X.2�� 126–27
Aarhus Convention on Access to Art X.3a�� 126–27
Information, Public Participation in Art XI�� 126
Decision-making and Access to Justice Art XI.1�� 125–26
in Environmental Matters to Inter-American Convention on Human
Community institutions and bodies Rights 1969
[2006] OJ L 264/13��123, 137 Art 13�� 123
Regulation (EU) No 536/2014 of the International Covenant on Civil and
European Parliament and of the Political Rights 1966�� 226
Council of 16 April 2014 on clinical Preamble (13)�� 7t
trials on medicinal products for human Art 1�� 7t, 177t
use, and repealing Directive Art 2��7t, 173–74, 175, 177t
2001/20/EC [2014] OJ L 158/1��257–58 Art 2(3) �� 174
Art 3�� 7t, 177t
European Decisions Art 5�� 7t, 177t
Commission Decision 94/90 of 8 February Art 6�� 7t, 177t
1994 on public access to Commission Art 8�� 7t, 177t
documents [1994] OJ L 46/58�� 248–49 Art 9(4) �� 7t, 177t
Art 9(5) �� 7t, 177t
Art 13�� 7t, 177t
INTERNATIONAL INSTRUMENTS Art 14�� 175
Art 14(1) �� 7t, 177t
Aarhus Convention on Access to Information, Art 16�� 7t, 177t
Public Participation in Decision-making Art 17(2) �� 7t, 177t
and Access to Justice in Environmental Art 22(3) �� 7t, 177t
Matters 1998��121, 123, 137, Art 23(4) �� 7t, 177t
153, 194–95, 205 Art 25�� 7t, 177t
Recital 10�� 246 Art 40�� 7t, 177t
African Charter on Human and Peoples’ International Covenant on Economic,
Rights 1981�� 264–65 Social and Cultural Rights 1966
Convention Against Corruption 2003 �� 174 Art 2(2) �� 7t, 177t
Convention Against Transnational Art 2(3) �� 7t, 177t
Organized Crime 2000�� 174 Art 3�� 7t, 175, 177t
Convention on the Rights of the Art 4�� 7t, 177t
Child 1990�� 226 Art 7bis �� 7t, 177t
European Convention on Human Rights Art 8(1)(d)�� 7t, 177t
and Fundamental Freedoms 1950�� 33, 41, Art 8(2) �� 7t, 177t
120, 154, 176–77, 187, 251, 265–66 Refugee Convention 1951 �� 226
Art 1�� 7t, 177t Treaty establishing the East African
Art 2(1) �� 7t, 177t Community 1967
Art 5(2) �� 7t, 177t Art 6�� 264–65
Art 5(3) �� 7t, 177t Art 6(d) �� 264–65
Art 5(4) �� 7t, 177t Art 7(2) �� 264–65
Art 6�� 84–85, 87, 122, 153, 175 Art 8(1) �� 264–65
xxii Tables of Legislation, Treaties, and Conventions
Art 8(1)(c)�� 264–65 Art 21(1) �� 7t, 177t
Art 27�� 264–65 Art 21(2) �� 7t, 177t
Universal Declaration of Human Art 22�� 7t, 177t
Rights 1948��86, 171 Art 25(1) �� 7t, 177t
Art 1�� 7t, 175, 177t Art 29(1) �� 7t, 177t
Art 2�� 7t, 177t Art 30�� 7t, 177t
Art 6�� 7t, 177t Vienna Convention on the Law of
Art 8�� 7t, 175, 177t Treaties 1969 ��151, 268, 279
Art 11�� 175 Art 31�� 266–67
Art 14(1) �� 7t, 177t Art 32�� 266–67
List of Abbreviations
AAR Annual Activity Report
ACER Agency for Cooperation of Energy Regulations
ACP African, Caribbean, and Pacific
ACT advance corporation tax
ADR alternative dispute resolution
AMPs annual management plans
APS Annual Policy Strategy
art article
arts articles
CAP Common Agricultural Policy
CCP Common Commercial Policy
CEEP European Centre of Enterprises with Public Participation and of Enterprises of
General Economic Interest
CEN European Committee for Standardization
CF Cohesion Fund
CFSP Common Foreign and Security Policy
CHR European Commission on Human Rights
CLWP Commission’s Legislative and Work Programme
CRD comment response document
CSDP Common Security and Defence Policy
CT Constitutional Treaty
DAC OECD’s Development Assistance Committee
DCFR Draft Common Frame of Reference
DG directorate-general
EACI Executive Agency for Competitiveness and Innovation
EBA European Banking Authority
EC European Community
ECB European Central Bank
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECSC European Coal and Steel Community
ECtHR European Court of Human Rights
EDA European Defence Agency
EEAS European External Action Service
EPC European Political Community
ESC European Social Charter
EU European Union
Europol European Police Office
FAC Foreign Affairs Council
FRA Fundamental Rights Agency
Frontex European Agency for Management of Operational Cooperation at External
Borders
GAC General Affairs Council
GAERC General Affairs and External Relations Council
GALA General Administrative Law Act (the Netherlands)
GDP gross domestic product
IACHR Inter American Court on Human Rights
ICCPR International Covenant on Civil and Political Rights
xxiv List of Abbreviations
ICESCR International Covenant on Economic, Social and Cultural Rights

IGC Intergovernmental conference
IMF International Monetary Fund
IPM Interactive Policy Making
LGAC Legislative and General Affairs Council
MEP Member of the European Parliament
NAPs national action plans
NCAs national competition authorities
NGO non-governmental organization
NSRF National Strategic Reference Framework
OECD Organisation for Economic Co-operation and Development
OEEC Organisation for European Economic Co-operation
OLAF European Anti-Fraud Office
OMC Open Method of Co-ordination
PECL Principles of European Contract Law
PSC Political and Security Committee
QMV qualified majority voting
SEA Single European Act 1986
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TFRA Task Force for Administrative Reform
UDHR Universal Declaration of Human Rights
UNDP United Nations Development Programme
WTO World Trade Organization
PA RT I
DEVELOPING THE CONCEPT
O F G O O D G OV E R N A N C E
1
Good Governance
An Introduction
Good governance is a concept used not only by lawyers but also by politicians and,
more generally, the public at large. Theologians, philosophers, social scientists, econo-
mists, and lawyers all have different perspectives on good governance. For example,
a lawyer may naturally be led to describe it as part of a legal system, usually used to
construct a legal rule of a given wish or aspiration. A legal principle makes sense only
if a connection can be established with such a system and an adequate concept of law.1
In that concept, each discipline has its own dimension to contribute, and if different
dimensions are brought together, they might create a complete approach to good gov-
ernance, bringing the greatest possible benefits to society. In a more interdisciplinary
approach with a legal, social science, and economic perspective, there are common
questions about the functioning of the government and citizens’ protection against
abuse by the government. The questions are related to the type, distribution, and ap-
plication of policy instruments, and to the supervision, control, and legal protection in
relation to this application.2 This entire approach of good governance can improve the
quality of the government, since the government should prevent maladministration
and minimize corruption.
Governance concerns a state’s ability to serve its citizens. It involves the rules, pro-
cesses, and behaviours whereby interests are articulated, resources are managed, and
power is exercised in society. Despite its open and broad character, governance relates
to the very basic aspects of the functioning of society and its political and social sys-
tems. It is described as a basic measure of a society’s stability and performance. As this
society develops a more sophisticated political system, governance evolves into the
notion of good governance.3
1. Good Governance: A Cornerstone of the Modern State

The concepts of the rule of law, democracy, and good governance are the cornerstones
of the modern state. These cornerstones make up the structure of the state and its
institutions, the position of the governmental institutions and the citizens, and the
norms for the relationship between the government and the citizens. These are partly
overlapping concepts but the distinctive elements can be identified. The rule of law
starts with the idea of the legal base of government actions and the need for protection
of citizens’ fundamental rights. Democracy gives the rule of law depth and especially
concerns transparency and participation of the citizens. Good governance is not only
about the further development of the rule of law and democracy but it also includes
1
Hart 1997. 2
Addink 2010a, ch 5; Addink 2013.
3
European Commission, Communication on Governance and Development, October 2003, COM
(2003) 615; Boustra 2010.
Good Governance: Concept and Context. Henk Addink. © Henk Addink 2019. Published 2019 by
Oxford University Press.
4 Good Governance: An Introduction
the elements of accountability and efficiency of the government. These elements are
sometimes qualified as elements of the social ‘rechtsstaat’, but then the conceptual legal
character is underestimated.4 Good governance is significant because it is both a norm
for the government and a citizen’s right. This justifies good governance as a genuine
third cornerstone.
The development of these notions started at different moments in history and has
often been linked to a state’s level of development. The first principle was the rule of
law and the second was democracy. Both were to become major elements of the liberal
state. Intertwined with them, aspects of good governance developed into the third vital
dimension of the state. Rather than developing separately, good governance thus devel-
oped in a process of mutual influence. This process is still evolving.
The modern state thus has three pillars: the rule of law, democracy, and good gov-
ernance. The three concepts— sometimes qualified as abstract principles— are all
fundamental notions that have been accepted in most of the world’s modern states.
Although their interpretations may differ from one country to another—often due to
differences in economic and cultural factors—there is a national core in each state from
which the principles evolved.
The rule of law holds that law conditions a government’s exercise of power only,
and that the state’s subjects shall not be exposed to any arbitrary will of the rulers.
Furthermore, rights are protected by law. Two major traditions exist in the Western
world, which can be distinguished as the common law traditions on the one hand and
the civil law traditions on the other. They are attached to different interpretations of
the rule of law. The common law countries usually adhere to a narrow or thin con-
ception of the rule of law, known simply as the rule of law. In the civil law traditions,
a broader or thicker conception is upheld, known as rechtsstaat, l’Etat de droit, and
Stato del diritto.5 The ‘thin’ conception is mainly concerned with principles of proced-
ural fairness, whereas the ‘thick’ conception embraces substantive criteria and universal
principles or values in which there is a need for a calculable, norm-based state action.6
Elements of the rechtsstaat are first, legality; second, division, separation, and balance
of powers; third, protection of fundamental rights; and finally judicial control.7 In add-
ition to the three classical powers (the legislator, the executive, and the judiciary), there
is growing attention towards the controlling ‘fourth power’, such as the Ombudsman
or the Court of Audit.8 In spite of these different conceptions, a strong consensus how-
ever exists on the rule of law as a fundamental concept.
Democracy is about the influence of the people on the policies and the activities of
the government. A distinction could be made between direct and representative dem-
ocracy. In a direct democracy, the people can influence politics directly. In a represen-
tative democracy, the people regularly elect representatives who represent the people’s
interest and defend the citizen’s rights. In the literature, a study has been made about
unitary, self-correcting democracy, as developed by Dicey concerning pluralist democ-
racy.9 The role of the government in a pluralist democracy is to protect and promote
diversity. This theory deems human nature selfish and acquisitive, and can be traced
back to the United States. Based on this, new ideas have been developed and crit-
ical remarks have been made on constitutional reform and democracy in the United
Kingdom and on participatory democracy.10 The following components are seen as the
4
Schlössels and Zijlstra 2017, 25.
5
Urbina 2002, ch 4, 225–43. Note: the Rule of Law cannot aptly be translated into French.
6
Neumann 2002, 6–20. 7
Burkens and others 2017, ch 3.
8
Addink 2005a, 251–73. 9
Dicey 1959, 339–40.
10
Craig 1990, chs 2–4, 7, and 11.
Good Governance and Law 5
most important elements of democracy: legislation by parliament, ministerial account-

ability to the parliament, transparency of administration, participation for interested
parties, and protection of minorities.11 Although there is not yet a specific, univer-
sally accepted, definition of democracy, equality and fundamental freedoms are at least
identified as important characteristics of it. All citizens should be equal before the law,
and all should have equal access to power. In a representative democracy, every vote
has equal weight. In principle, no restrictions may apply to anyone who aspires to be-
come a representative. Legitimized rights and liberties legally guarantee the freedom of
citizens. The notion of representative democracy has arisen largely from ideas and insti-
tutions that developed during the European Middle Ages, the Age of Enlightenment,
and in the American and French revolutions. Democracy has been called ‘the last form
of government’ and has spread across the globe in the last century.
Good governance is a norm for the government and a citizen’s right. Within the con-
cept of good governance, more specific conditions have been formulated. These norms
are sometimes linked to the norms of rule of law and democracy, but mostly they have
their own contents. Aspects of good governance are properness, transparency, partici-
pation, effectiveness, accountability, and economic, social, and cultural human rights.
These elements have developed into universal elements of good governance, although
other norms or differing terminology might be found in practice as well, but these are
accepted across cultures or are applicable across the board. These six basic elements
of good governance have been found to be the hard core of the concept. An example
could be the specification or restriction of the application of the principles of good
governance to the field of administration. In the broader perception, the principles of
good governance apply to all the powers of the state. Later in this book, a distinction
will be made between principles of good governance and principles of good adminis-
tration. In short, the broad conception of good governance can be specified according
to the three types of state powers. It is about principles of good legislation for the legis-
lator; principles of good administration for the administration; and principles of good
judicial procedures for the judiciary.12 In the context of administration, two groups
of principles have been joined: the principles of good regulation and the principles of
better regulation. Some of the principles are also being used in the field of corporate
and private law. Here we prefer to use principles of good governance in the context of
the government, and principles of corporate governance in the context of companies.
2. Good Governance and Law

Good governance has to be described as part of the legal system to label the prin-
ciples of good governance as legal principles. In the context of the more extensive
juridification of society, the legal appearance of the principles is becoming more and
more important. Therefore, it is interesting to make this connection between good
governance and law and to formulate an adequate concept of good governance law.
However, this makes sense only if a connection can be made between such a system
and an adequate concept of law, because then we can speak about principles of good
governance as legal principles.
The concept of a legal system requires a further specification, which contains norms
and enforcement. The perspective chosen here primarily focuses on good governance
11
Van Wijk, Konijnenbelt, and Van Male 2005, 42; Konijnenbelt and Van Male 2014, 42.
12
Addink 2005.
as a part of different legal orders, like domestic, regional, and the international legal
order. The European order receives special attention. It should be realized that any legal
regime has its own intellectual and ideological foundations, and good governance is no
different. The ideas behind good governance must be made concrete as elements of a
legal system according to the applicable secondary rules so that they can be recognized
as legal principles of good governance. There is usually a close relationship between
political ideas and their translation into legal substance. There are many bridges be-
tween law, ethics, and morality, and therefore it remains important to distinguish the
philosophical ideal from the legal thought. At the same time, it is important not to
lose sight of the ideological foundations of good governance. The very idea of good
governance presupposes a certain concept of government and its relations with indi-
vidual citizens. Naturally, it includes the evolvement of thinking from government to
governance.
Three steps have to be taken from the legal concept to the legal positivism of good
governance: identification of the principles, their development as legal norms, and en-
forcement of those norms.13
The first step—identification—can be done by either a top-down or a bottom-up
approach. First, the top-down approach concerns the international and regional (ie
European) levels. Those who can legitimately initiate a process of norm creation at the
international and the regional (eg European) level must agree on the operationalized
aspects of good governance. In that context, it is relevant to realize that there may
exist limitations and restrictions on the national level. From the bottom-up approach,
there are inherently existing limitations to state power. State entities have been charged
with a certain mandate: to shield the human being from the threats of daily existence.
Naturally, that is not the same as the state being an almighty machine, tyrannically
controlling everyone under its jurisdiction. As a matter of principle, the state has to
limit its actions according to, at least, civil rights, for example, the right to privacy.
Responsibilities in the sphere of social and economic rights follow.
The second step concerns the internalization of the thus-defined legal norms in
terms of legal commitment. It is about the implementation of international and re-
gional legal norms by developing policy rules and other types of regulations at national
level and the process of positivism of the legal norms on good governance. This process
of positivism can be achieved in different legal forms and by different governmental
institutions. Under the bottom-up approach, on the national level, different aspects of
the principles of good governance have to be codified. We can think of codification of
the different principles of good governance in general norms but also as the specifica-
tion of these general principles in other government documents. These norms of good
governance should be internalized in governmental actions.
The third step contains the enforcement of legally binding norms, to be guaranteed
at the abovementioned levels: international, regional, and national. Choosing which
of these levels is appropriate will depend on the contents of the norms and the legal
framework. If we take the principles of good governance to be rights, the question con-
sequently and necessarily arises whether these principles should be enforceable as rights.
This is known as the positivistic approach of good governance.
13
Tomuchat 2003; Van der Jagt 2006.
Good Governance and Human Rights 7
3. Good Governance and Human Rights

The implementation of good governance and human rights in general, and economic,
social, and cultural rights, to a great extent depends on the substantive principles of
good governance. Human rights (and especially the legal provisions protecting these
rights at all levels) correspond to or include different principles of good governance.14
So, in essence, we find the principles of good governance in the discussions about
human rights, but often these principles are only recognized as human rights and
not as principles of good governance. The topic of the principles of good governance
cannot easily be pointed to in the field of human rights, but nevertheless there are
strong links. Good governance principles have also been developed by specific human
rights, but the underpinning dimension here is that of good governance.
The direct link between good governance and human rights can be illustrated in
Table 1.1, which gives an overview of articles in human rights treaties where principles
of good governance have been described.
Table 1.1 Articles in human rights treaties where principles of good governance have been
described
Treaty UDHR ICCPR ICESCR ECHR ESC
Due care (13) 6(1) (due care)

Legal certainty 4, 8(1d,2)
Equality 1, 2 3, 14(1) Preamble par. 2, 14 20, 27
2(2), 3, 7bis
Public 6, 8, 14(1), 6, 9(4,5), 13, 5(4), 6(3b-e), 15, 22
participation 21(1,2), 29(1) 16, 25 13, EP3
Transparency 8, 40 21, 29
Accountability 30 1, 5, 40 19
Effectiveness 22, 25(1) 2, 3, 17(2), 5(2,3), 13, 17
22(3), 23(4)
General Preamble par. 2, 1 (shall secure), Part I
2(3) 2(1) (protected
by law)
A second, relatively new, development in the strong relation between human

rights and good governance is the emergence of the subjective right to good admin-
istration. Such a right to good administration emerged as a new fundamental right,
and it applies to every person coming into contact with governmental institutions
and bodies. The right to good administration is included in European Union law.
It was already recognized in the Charter of Fundamental Rights of the European
Union adopted in 2000 (Nice Charter)15 and further confirmed in article 6-1 of the
Lisbon Charter and is nowadays qualified as the Charter of Fundamental Rights of
the European Union.16
Article 41 of the Charter states the following with respect to good governance:
14
Addink 2010a, ch 1.
15
Kańska 2004, 296–326; Pfeffer 2006; Wakefield 2007; and Classen 2008.
16
Addink 2012a, 11.
1. Every person has the right to have his or her affairs handled impartially, fairly and within a
reasonable time by the institutions and bodies of the Union.
2. This right includes:
• the right of every person to be heard, before any individual measure which would affect
him or her adversely is taken;
• the right of every person to have access to his or her file, while respecting the legitimate
interests of confidentiality and of professional and business secrecy;
• the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its in-
stitutions or by its servants in the performance of their duties, in accordance with the general
principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the
Treaties and must have an answer in the same language.
These provisions show that there is not (yet) a general right to good governance but
there is a subjective right to good administration which covers several aspects of good
governance. It is probably best to say that some aspects of the principles of good gov-
ernance have been codified in article 41 of the Charter.17 The focus is on procedural
rights, but there still may be some problems with regard to adopting a more substantive
right to good governance, such as the fear of administrative rigidity.
The first paragraph of article 41 formulates a kind of umbrella right, which is given
more substance by the requirements regarding the way citizens of the European Union
should be treated by the institutions and bodies of the Union. These requirements refer
to impartiality, fairness, and decision-making within a reasonable time. Paragraph 2 of
the article specifies the obligation to hear an individual citizen when his interest is con-
cerned directly. Such an individual should have access to one’s own file and the com-
petent authority is obligated to give sufficient reasons for the decision. Furthermore,
under specific circumstances, a right to compensation is granted to individuals who
suffer damage because of the European Union’s actions. This right is stated in art-
icle 340 of the Treaty on the Functioning of the European Union (hereafter TFEU).
The article is applicable only in the case of unlawful acts of EU institutions or by the
wrongful conduct of EU servants.18 And finally, everyone has the right to be answered
in his or her own language. Interestingly, particularly formal and procedural elements
have been laid down in these rules. That is understandable as case law on these proced-
ural issues is relatively well-developed, but the substantive elements of good govern-
ance are not to be neglected.19
The discussion on the scope of application of article 41 of the Charter epitomizes
the more general discussion regarding the interrelation between general principles and
Charter rights but also the (problematic) protection of the right to good adminis-
tration in the EU integrated administrative law system with various input from the
national and EU levels.20 Precisely because article 41 of the Charter defines its scope
of application by reference to the direct administration of the European Union, its
relationship with the principles of good administration and the rights of the defence
remains a rather controversial topic.21 Relevant also is the case law related to article 41,
summarized as follows:22
Addink 2008.
17 18
Widdershoven 2007, 319–24. 19
Wakefield 2007.
Mihaescu Evans 2015.
20
21
Opinion AG Bobek, 7 September 2017, ECLI:EU:C:2017:650. Case C-298/16 T and A Ispas v
Direcția Generală a Finanțelor Publice Cluj.
22
Ibid.
Good Governance and the Main Developments 9
It is clear that a number of the different ‘operative’ components placed under the umbrella of the
‘right to good administration’ by the second paragraph of Article 41 also reflect specific general
principles of EU law. Of particular importance in this regard is the general principles of respect
for the rights of the defence, including the right to be heard, or the duty to state reasons.
88. It is equally clear that the principle of the protection of the rights of the defence, which is
pertinent to the circumstances of the present case, is applicable to Member States when they are
acting within the scope of EU law, if national authorities are contemplating the adoption of a
measure which will adversely affect the person in question.
89. On the other hand, it is doubtful whether such general principles, such as the rights of the
defence in the present case, have exactly the same content as Article 41 of the Charter. For one
thing, the explicit limitation in the wording of Article 41 of the Charter impedes, as Advocate
General Kokott puts it, its content from simply being ‘transposed without more ado to bodies
of the Member States, even when they are implementing [EU] law’. On a more conceptual
level, doing so would come dangerously close to the circumvention of the explicit provision of
Article 41 of the Charter.
90. In the light of this important remark, each of the components of Article 41 has to be care-
fully and independently considered. This is particularly the case for the right of access to the file,
which found its way into the wording of Article 41 as a result of a jurisprudential evolution that
itself had its origins in the assessment of the practice of EU institutions in the specific field of
competition law.
91. In short, the applicable general principle is the respect for the rights of the defence. Its con-
tent with regard to the Member States’ application of EU law may differ from the (specific and
autonomous) guarantees provided for in Article 41 of the Charter, which are applicable to the
direct administration of the EU.
4. Good Governance and the Main Developments

The history of good governance as a phenomenon can be divided roughly into four
phases. In the first phase, the focus is on the national level. In the second phase, we
see activities of international organizations in relation to the development of the con-
cept of good governance. On the European level this can be distinguished between the
contribution of the Council of Europe (the third phase) and the contribution of the
European Union (the fourth phase).
In the Netherlands, the first phase started in the 1930s with the development of
unwritten principles of law by the judiciary. These principles were focused on the work
of the administration and principles of proper administration. That was and still is a
rather narrow approach of good governance, especially since to date this concept has
been approached from a more formal perspective. Initially, these principles of proper
administration were developed for more extreme situations and unacceptable acts by
the administration. In following years, these principles were elaborated. In the 1990s,
we can find in some countries a process of codification of these norms in general ad-
ministrative acts. In other countries, for example France, the judiciary developed these
principles in the first phase. In countries like Germany,23 the very general principles
have been written down in the constitution.
The international and European developments start at the end of the twentieth cen-
tury. In the beginning of the 1990s, international organizations in the field of devel-
opment aid and finance started to develop good governance norms to make sure that
financial assistance is properly directed. The IMF, the World Bank, the WTO, the
23
Schröder 2007.
UNDP, and the OECD were quite active in these fields. Not all international organ-
izations have started with the same topics; global financial organizations have been
more focused on macro-economic reform whereas political organizations sought a con-
nection with human rights and the rule of law. It seems like there is now a growing
consensus on the specification of good governance norms. Even the international or-
ganizations themselves have been reformed because of the need to abide by standards
of good governance.
In relation to the developments in Europe, we have to make a distinction between
the system of the European Union and the system of the Council of Europe. There
are remarkable differences in the field of competences, objectives, and the structure of
these organizations.
The Council of Europe was founded after the Second World War to ensure peace in
Europe. Originally, it started with ten members and now that number has increased
to forty-seven. Its basic aim is to achieve a greater unity between the member states,
especially by promoting human rights, parliamentary democracy, and the rule of law.
The European Court of Human Rights, the Commissioner for Human Rights, and
the European Commission for Democracy through Law (Venice Commission) play
important roles independent from but in connection with the Council of Europe. The
Council makes recommendations that are not legally binding but in effect are often
followed by the member states. In 1996 and in 2018 updated, the Council developed
the Handbook ‘Administration and You’, which gives an overview of basic principles
as formally respected in the member states. In 2007, they published the recommenda-
tion on Good Administration and a Code in which these principles were codified. The
Council of Europe stated:
Recommends that the governments of member states:
• promote good administration within the framework of the principles of the rule of law and
democracy;
• promote good administration through the organisation and functioning of public authorities
ensuring efficiency, effectiveness and value for money. These principles require that member
states:
• ensure that objectives are set and performance indicators are devised in order to monitor
and measure, on a regular basis, the achievement of these objectives by the administra-
tion and its public officials;
• compel public authorities to regularly check, within the remit of the law, whether
their services are provided at an appropriate cost and whether they shall be replaced or
withdrawn;
• compel the administration to seek the best means to obtain the best results;
• conduct appropriate internal and external monitoring of the administration and the ac-
tion of its public officials;
• promote the right to good administration in the interests of all, by adopting, as appropriate,
the standards set out in the model code appended to this recommendation, assuring their
effective implementation by the officials of member states and doing whatever may be permis-
sible within the constitutional and legal structure of the state to ensure that regional and local
governments adopt the same standards.
The report analyses all the recommendations of the Council of Europe from the per-
spective of good administration to date. Finally, they have systemized the different
standards of good administration in concrete articles.
The European Union (as it is now known) was founded in 1951 with the Treaty
of Paris. In this treaty, a European Coals and Steel Community was established by
six founding countries: Belgium, the Federal Republic of Germany, France, Italy,
Good Governance and the Main Developments 11
Luxembourg, and the Netherlands. The aim of this treaty was to secure peace be-
tween Europe’s victorious and vanquished nations and bring them together as equals,
cooperating within shared institutions. This aim should be considered in the light of
post-war Europe. Some years later, in March 1957, the six countries agreed on the
Treaty of Rome. In this second treaty, they decided to constitute a European Economic
Community. Custom duties between the six countries were completely abolished in
July 1968. Common policies, notably on trade and agriculture, were put in practice
during the 1960s. In 1973, 1981, and 1986, many other European countries became
members. After the worldwide economic recession in the early 1980s, a wave of ‘euro-
pessimism’ swept through Europe.
The political map of Europe was dramatically changed when the Berlin Wall fell.
After the fall, the unification of Germany took place in October 1990. Democracy and
the rule of law were introduced in the countries of Central and Eastern Europe as they
broke away from the Soviet Union. It must be said that this development was not com-
pletely new for all countries. As the Tsarist Empire broke down, some countries (like
the Baltic states) tried to build up their independent countries after the model of the
Weimar Republic. The Soviet Union itself ceased to exist in December 1991. At that
time, the member states were negotiating on the new Treaty of the European Union.
This treaty was adopted by the European Council, which is composed of presidents
and prime ministers. This landmark event took place in Maastricht in December 1991.
The treaty came into force on 1 November 1993. Some areas of intergovernmental
cooperation have been added to existing Community structures, which were already
integrated.
By then, the EU was on course for its most spectacular ambition yet: creating one single
currency, the euro, which was introduced for financial non-cash transactions in 1999.
Notes and coins were issued three years later in the twelve countries of the euro area. This
area is commonly known as the euro zone. The euro has become a major world currency
for payments and reserves alongside the US dollar.
In the meantime, increasing globalization provided Europe with new challenges, al-
though Europeans have profited from globalization as well. New technologies and the
increasing use of the internet have transformed economies and have brought social and
cultural challenges. In March 2000, the EU adopted the Lisbon strategy. By this strategy,
the Union aspires to modernize the European economy and enable it to compete on the
world market with other major players, such as the United States and the newly indus-
trializing countries. The Lisbon strategy encourages innovation and business investments
and adapts Europe’s education systems to meet the needs of the information society. At the
same time, unemployment and the rising cost of pensions are putting pressure on national
economies, making reform all the more necessary. Voters are increasingly calling on their
governments to find practical solutions to these problems.
In the mid-1990s and in 2004, more countries became members of the European
Union. In 2009, the Treaty of Lisbon was adopted to make the EU more democratic,
more efficient, and increasingly able to address global problems such as climate change
with one voice. The European Parliament was provided with more competences, the
voting procedures in the Council were changed, and the possibility for a citizens’ initia-
tive was created. As to the structure of the EU, a permanent president of the European
Council and a new High Representative for Foreign Affairs would be appointed.
Further, a new EU diplomatic service was established.
In 1991, the EU Council of Ministers provided a brief description of the contents
and the importance of good governance in a resolution on Human Rights, Democracy
and Development. The European Court of Justice had already been using the prin-
ciples of good administration. In July 2001, the Commission published a White Paper
on European Governance in which some principles of good administration were fur-
ther elaborated.24 In September 2001, the European Parliament adopted a resolution
containing the ‘Code of Good Administration’ in which European Union institutions
and bodies, their administrations, and their officials should respect in their relations
with the public. This Code was developed by the European Ombudsman, who based
the Code on his experiences in relation to cases of bad administration. In December
2000 there was already a Charter of Fundamental Rights of Citizenship—including
rights on relations with the administration—proclaimed in Nice. In chapter V on
citizens’ rights of the Charter, article 41 includes the right to good administration. In
2010, a link between the Lisbon Treaty and the Charter was made, so that it now has
a strong legal base which will be further explained in Chapter 3, ‘Good Governance
and Human Rights’.
Based on these national, European, and international developments on good ad-
ministration, we can see three general trends. The first trend is that in many countries
most of the norms of good governance have been developed by the judiciary first.
These controlling institutions are the discoverers and developers of the principles of
good governance. But in several fields, these norms have been developed by the legis-
lator, sometimes based on an initiative of the parliament. Finally, some norms were
already worked out in the law and have been further developed by the Ombudsman
and the Court of Audit. The second trend is that, in most situations, the principles
of good governance were first developed as norms for the administration. Later, these
norms have been codified as subjective rights for the citizens. The third trend is that
these principles of good governance were developed in several groups. The first group
is the principles of properness, the second group constitutes the principles of transpar-
ency and participation, the third group constitutes the principles of accountability and
effectiveness, and the fourth and last group concentrates on human rights. There is an
active interaction between these groups. Each group of principles will be elaborated in
a separate chapter.
5. Structure of the Three Parts of this Book

The book consists of three parts. Part I deals with general conceptual aspects of good
governance, Part II pays attention to the specification by the principles of good gov-
ernance, and Part III is about the application of the principles of good governance on
a national level in the different regions in the world.
In the first part we start—after the introduction—by presenting an overview of
the principles of good governance on the three main levels of the legal system: the
national, the regional, and the international level. Then we will focus on the national
level. In two chapters, the relationship between the rule of law and good governance
and between democracy and good governance will be made clear. The conclusion of
these chapters is that good governance constitutes the third cornerstone of a modern
democratic state. In the following chapter, the question of whether good governance
is simply a norm for the administration or whether it also implies a fundamental right
24
European Commission, White Paper on European Governance, July 2001, COM (2001) 428.
Conclusions 13
for citizens is discussed. The last chapter of Part I concerns the theoretical position of
good governance as a principle, a fundamental right, or a value.
The second part of the book further examines the individual elements of good gov-
ernance, the principles of good governance. The six principles are discussed: proper-
ness, transparency, participation, effectiveness, accountability, and human rights. On
a very abstract level these principles can be seen as six individual elements of the same
general and abstract principle, on a more concrete level there are six distinct principles
of law. In this second part, each chapter on good governance follows a comparable
structure. This structure facilitates the comparison between the different principles and
contributes to a better insight. The first point of interest is why a certain principle has
been developed and what the underlying concept of the principle is. Then we look at
the way each principle has taken on different forms in different countries. Then which
institutions are involved in the development of the principles is outlined. The different
sources of the principles are described as well. Whenever possible, concrete legislation
and policy rules are brought into the discussion. Finally, how the controlling institu-
tion contributes to the further development of the principles of good governance is
elaborated upon.
The third part deals with the application of the principles of good governance on
a national level in the member states of the European Union but also in states of
other continents in the world. In this part we give a description of the application
region wise and country by country and according to the same structure. We start
with Europe with a strong focus on the countries of the European Union. We give an
explanation on the research questions, the normative framework, and the used meth-
odology. Then we will give an overview of the results of the study by distinguishing the
following regions of Europe: Northern, Western, Southern, Central, and the United
Kingdom and Ireland. Similarly, we are doing it for three countries in other regions of
the world: Australia, Canada, and South Africa.
6. Conclusions
In this introduction chapter, we started to position the concept of good governance in
relation to the developments of a modern state. In the first phase of the development,
the rule of law concept has been developed, in the second phase this concept has been
deepened in relation to the concept of democracy. The third phase shows a deepening
of the concepts of the rule of law and of democracy in relation to the concept of good
governance. That process of deepening the concepts of the rule of law and of democ-
racy takes place in close connection to the concept of good governance. We concluded
that good governance can be seen as the third cornerstone of the modern democratic
rule of law.
Principles of good governance can only be legal principles when they have been
integrated in the legal system and there is legal effect of the application of these prin-
ciples. That process takes place in three phases of the legal process: in the process of
making regulation, the process of implementing regulation, and in the process of
controlling and enforcing the regulation by the different controlling institutions. In
each of these phases we see the legal consequences of the principles of good govern-
ance. These principles are norms which are used by the legislator, the administration,
and the controlling institutions like the judiciary. The principles sometimes function
as norms for the administration and in other situations as protecting norms for the
citizens.
The protection of good governance principles has, in effect, already taken place in
the context of human rights. These were mostly not recognized as principles of good
governance but as the implementation of social, cultural, and political rights of citi-
zens. We find these principles of good governance in different international human
rights treaties and regulations. The conclusion is that the field of human rights already
has operationalized the principles of good governance in regulations and in the human
rights case law.
In a short description of the main developments of principles of good governance,
we see already a broad scale of national, European, and international principles of good
governance. In constitutions, laws, regulations, and policy rules we find these prin-
ciples already specified. Also, from the European level there is a strong influence on the
national level for the development of the principles of good governance. We concluded
with the importance of the recommendations of the Council of Europe and the spe-
cification of principles of good governance on the European Union level. Finally, the
international level is also an important source of principles of good governance.
2
An Overview of Good Governance
In this chapter, an overview of the different aspects of good governance is presented.

The need for good governance is explained and the specific concept and development
of good governance is elaborated upon. Subsequently, the relevant institutions and the
different sources of good governance are discussed.
1. Need for Good Governance

The concept and the specification of the principles of good governance have been de-
veloped at the national, regional, and international levels, according to the different
problems in the relations within governmental institutions and in the relations be-
tween the government and society. Some of the principles emerged at the national level
as the judiciary developed several principles to fill legislative gaps. These principles then
moved on to the international or regional level where they were elaborated upon and
then they return, somewhat changed, to the national jurisdiction.
On the international level, problems originally arose in the context of the finan-
cial circumstances of states. International financial institutions were the first to regu-
late these situations. The norms used in this context have further been elaborated
upon in the field of development aid. Financial and economic issues in a number
of countries have thus contributed in an important way to the development of good
governance norms.
On the regional level, for example in the European Union, different aspects re-
lating to the quality of the administration gave rise to both preventive and repressive
solutions for maladministration. The judiciary and the ombudsman developed these
norms of good governance partly by themselves and partly by the implementation of
these codes.
Nowadays, the most urgent problems in relation to the administration can be found
at the national level. Situations of bad governance still exist, such as corruption, malad-
ministration, and mismanagement. Again, problems are tackled both in repressive ways
(eg through criminal and administrative sanctions) and in preventive ways (through
administrative law instruments).1 It has to be noted that problems might be perceived
as worsening because of the distance between a private actor and the administration.
A separate problem, especially at the national level, is the fragmentation of good
governance norms for institutions of the state. However, this is also a growing problem
at the regional and especially at the European level. In the Netherlands, such norms
had been proscribed in specific administrative law acts and therefore a need for the
integration of norms was created. The General Administrative Law Act (GALA) hopes
to provide this integration. GALA has several advantages: the norms to be observed
are clearer, which is in the interest of both citizens and the government, and it makes
1
Addink and Ten Berge 2006, 379–419.
Good Governance: Concept and Context. Henk Addink. © Henk Addink 2019. Published 2019 by
Oxford University Press.
16 An Overview of Good Governance
the norms more accessible to citizens. In addition to GALA, a Code for Good Public
Governance has been published by the Netherlands Minister of Interior Affairs. The
executive bodies of all public authorities adhere to this Code. The Code prescribes,
for instance, how executive bodies and public servants should behave in their deal-
ings with private citizens, businesses, and other public authorities.2 This is important
because it increases trust in public authorities among the general public and private
institutions, self-awareness and integrity within the authorities themselves, the pro-
fessionalism and l’esprit de corps within the authorities, and transparency regarding
the core duties. But this is not the only Code of Good Governance; each policy (sub)
sector in the Netherlands has its own Code, so that today about twenty Codes of Good
Governance can be found in the Netherlands. Here we begin to see the problem of the
fragmentation of the norms of good governance.
2. Concept of Good Governance

Good governance is not only about the proper use of the government’s powers in
a transparent and participative way, it also requires a good and faithful exercise of
power. In essence, it concerns the fulfilment of the three elementary tasks of govern-
ment: to guarantee the security of persons and society; to manage an effective and
accountable framework for the public sector; and to promote the economic and social
aims of the country in accordance with the wishes of the population. A distinction is
drawn between an institutional and a functional approach in the achievement of good
governance.
The institutional approach of good governance is related to, for example, a minister
or a civil servant, administrative authorities, or the public prosecutor, each competent
to fulfil a specific function. In the functional approach, the focus is on the fulfilment
of a specific function. These functions depend on the tasks endowed to a specific in-
stitution. Within the functional approach, the licensing function and the supervision
function are distinct from each other. The licensing function refers to legitimacy ex
ante, whereas the supervision function refers to legitimacy ex post.
The functional content can be split into good governance as part of public law and
corporate governance as part of private law. Although these are not entirely separate,
public law3 and private law have different tasks and functions and also different pro-
cesses of legitimization. Whereas public competences must have a legal basis in con-
stitutional law and should be legitimately exercised, the legitimacy of private actors’
exercising of authority is still somewhat diffuse. In the literature, attention is paid to
the legitimacy of transnational private regulation, in which principles of good govern-
ance are recognizable.4 It should also be noted that the public and private use of prin-
ciples of good governance mutually influence each other, and this contributes to the
development of the substance of the principles of good governance.
2
Ministry of the Interior and Kingdom Relations. Department of Public Administration and
Democracy, The Netherlands Code for Good Public Governance, July 2009, 20522 | 3273–GMD32,
available in English: <https://www.integriteitoverheid.nl/fileadmin/BIOS/data/Internationaal/
Netherlands_Code_for_Good_Public_Governance.pdf>.
3
Elliott and Feldman 2015, ch 1.
4
Curtin and Senden 2011, pp. 163–88; Kingsbury, Krisch, and Stewart 2005, pp. 15–62. In this
article, attention is paid to procedural standards like participation and transparency and substan-
tive standards such as proportionality, means-ends rationality, avoidance of unnecessarily restrictive
means, and legitimate expectation. (pp. 37–41).
Concept of Good Governance 17
A second point concerns the meaning of the principles of good governance: first,
governance: an extensive interpretation of governance may fit the best, since both
public and private actors can profit from these norms, albeit in different ways; second,
principles: it is with good reason that we refer to these norms as principles. It underlines
the fundamental nature of these notions and links these with other existing principles
of law. Principles have a legal character so they can be invoked before the competent
authority and the judiciary. Inherent to principles is that they are more flexible than
regulations. To conclude, the terminology of principles of good governance is already
accepted in literature, case law, and in legislation. The question may arise whether prin-
ciples of good governance are mainly legal principles or policy guidelines. The answer
is both: although they can serve as policy guidelines, the legal character of these norms
is of striking importance. It makes the principles far less informal and more obligatory.
Some further remarks now follow concerning important terminology in the context
of good governance.5 These include governance and administration, good governance
and principles of good governance, and principles of good governance and principles
of proper administration.
(a) Governance and administration

First, we must note that, in some countries, no difference is made between govern-
ance and administration. In other countries, governance is related to the three or four
powers in a state. Administration refers, then, to one of those powers, based on the
separation or balance of powers in the modern state. The word administration has a
double meaning: it is not only related to the institution but also to the activities per-
formed by the administration. In the Walker Oxford Companion to Law, the following
definition is provided for governance: exercise of authority, control; government, and
arrangement. Two other brief descriptions of governance are: the act, process, or power
of governing; the state of being governed. Two additional descriptions are: the persons
or the institutions who make up a governing body (government) and who administer
something; the act of governing, exercising authority (governance).
For administration, the following definitions are provided: the act or process of ad-
ministering, management of a government, the activity of a government in the exercise
of its powers and duties, the executive branch of a government, office of an executive
officer or body, law management and disposal of a trust or estate, dispensing, applying,
or tendering of something such as an oath. Also, this term is formerly used for the body
of persons appointed to carry the government of the country, now usually called the
government.6
Different definitions already exist in the field of law and many more exist in other
sciences. Different meanings of the word ‘governance’ have been found, especially in
political science. The political scientist Robert Rhodes found at least six uses for the
term ‘governance’.7 He primarily refers to the methodology of government in the post-
modern, minimal state, which is comparable with notions of good governance. The
other sets of meanings are concerned with systems analysis, socio-cybernetic systems,
and self-organizing networks. Most of these definitions are, not surprisingly, related to
the political science approach.
At the same time, both the legal and political scientists agree in essence with the
critics of the London School of Economics Study Group on European Administrative
5
Addink 2005. 6
Walker 1980. 7
Rhodes 1996, pp. 652–67.
Law. They encourage the European Commission to clarify in detail the definitions in
the White Paper. An institutional and instrumental perspective should be accompanied
by a normative approach. In the case law of the Court of Justice of the European Union
and the European Ombudsman, we often find mention of the terms ‘maladministra-
tion’ or ‘principles of good administration’.
Both governance and administration could be used in accordance with an admin-
istrative law perspective. They imply activities promoting the general interest by the
fulfilment of a public task. Therefore, here we could have used the terms ‘public govern-
ance’ or ‘public administration’ as well. However, the exercise of a public responsibility
may not be fulfilled by the traditional administration on a central or decentralized level
only. In some countries, several of these responsibilities are entrusted to independent
administrative bodies and private institutions which carry out these activities in the
general interest and which have no hierarchical relation to the other parts of the gov-
ernment. Norms of good governance are relevant for these institutions too. As stated
above, we uphold a broad perspective on governance, although a narrow one can pre-
vail in some countries, at least in the field of public administration.8 This piece does
not make a systematical distinction between good administration and good govern-
ance because the separation of state powers is not entirely the same in all Western coun-
tries. For example, the United States adheres to a strict separation, whereas Australia
has a milder separation between the legislature and the executive.
Moreover, similar types of governance norms develop in the private sector, for
example the emergence of the principles of corporate governance and the topic of
corporate social responsibility in which we also recognize similar private governance
norms. Governance in the public administration context refers to the principles of
good governance or good administration, which often connote the development of
different examples of social networks. Using principles of good governance in the pro-
cess of developing networks can be seen as the secondary function of these principles.
These networks can be seen as new arrangements of governance. One of the crucial
features of these developments is that they concern a diversity of sectors.9 Therefore,
we have found two different functions for the development of the principles of good
governance.
(b) Good governance and principles of good governance

The focus here is not on different, individual acts of governance (governance), but
rather on the different principles as the overarching steering mechanisms for these
activities (the principles of good governance). As we look for parameters of good gov-
ernance, the focus in the discussion should be on the principles of good governance. In
the literature, this is also referred to as governance, including the methodology of gov-
ernment in the post-modern, minimal state, which deals with the concept of good gov-
ernance (but mainly the efficiency targets of new public management). These norms of
effectiveness and efficiency are actually included in the principles of good governance,
albeit as part of a broader norm setting. This gives nuance to a mainly economic per-
spective on governance.10
The term ‘governance’ has a non-normative content and therefore there is a prefer-
ence to use the term ‘good governance’ in the legal and normative non-legal discussion.
In these discussions on good governance, we refer not only to orders and decisions by
8
Chiti 1995, pp. 241–58; Nehl 1999, p. 17.
9
Van Kersbergen and Van Waarden 2004, pp. 143–71. 10
IMF 2018.
Specification of the Principles of Good Governance 19
the administration but also to other activities, such as private activities and factual acts.
All these forms of governmental behaviour are linked with the principles of good gov-
ernance and therefore the focus is on the broader perspective of governance.
(c) Principles of good governance and principles

of proper administration
The literature sometimes refers to the concept of good governance as principles of
good governance or principles of proper administration, but sometimes also as prin-
ciples of fair administration. As already explained, the distinction between governance
and administration is not that explicit in all modern states. Therefore, some scholars
prefer to make a distinction between corresponding sets of principles: principles of
good governance or principles of proper administration. In that case, it is better to
refer to principles of good administration rather than only ‘proper’ or ‘fair’ adminis-
tration, so it would express—in a modern state—the necessary deeper and broader de-
mands of good administration over the minimum standards of proper administration.
Interestingly, the European Ombudsman uses the terminology of good administration
(former article 138e/article 195 EC Treaty; now article 228 TFEU).
Chapter 7 elaborates upon the details of the distinction and the relationship be-
tween the broader principles of good administration and the narrower principles of
proper administration. For now, it is important to recognize the principles of proper
administration as minimum standards and to regard the principles of good governance
as having a higher level of ambition. Concretely, good governance is mainly about the
six specified principles. Further, it is relevant to understand that a violation of the prin-
ciples of proper administration is always contrary to the law, whereas a violation of the
principles of good governance is often illegitimate and could be merely subsequently
unlawful. Since good governance is concerned with more than the legal aspects of ac-
countability and effectiveness, good governance essentially means more than only the
traditional legal aspects. The extent to which principles of good governance are actually
codified is decisive for the justifiability of alleged violations of those principles.11
3. Specification of the Principles of Good Governance

The concept of good governance is a meta-concept, which means that good governance
is built on other concepts. These specific principles of good governance are: properness,
transparency, participation, effectiveness, accountability, and human rights. These spe-
cific principles are relevant on the national, the regional, and the international level.
These levels partly interact in the development and implementation of the principles.
Chapter 3 elaborates upon this interaction.
11
Two aspects are relevant in this context, a formal and a substantive one. The formal aspect is that
the law prescribes what degree of attention should be given to the principles of accountability and
effectiveness. The Dutch Court of Audit focuses mainly on these two principles, as elaborated in the
Dutch Court of Audit Strategy 2010–12.
The substantive aspect is that, in relation to accountability and effectiveness, in practice it is more
of a process than an action. Such a process can be controlled by the judiciary. These aspects are dif-
ferent from questions related to the civil or criminal liability of the administration as a part of the legal
entity—the state. However, there are some links.
Furthermore, the principles could be interpreted differently depending on the char-

acteristics of a specific competence and whether they fall within the scope of the execu-
tive, the legislative, or the judicial competences, or a combination of them all.
In the context of legislation and regulation, the principles are specified in proper,
participative, transparent, accountable, and effective regulation which respects human
rights. In the context of the administration, the principles are explained as require-
ments of proper, participative, transparent, accountable, and effective administra-
tion, which is not contrary to human rights. In the context of judicial procedures, we
can distinguish between the above principles and effective judicial procedures which
are in harmony with human rights. It can be concluded that the specification of the
principles largely depends on the position of the governmental institutions involved,
within the constitutional context.
When the different positions of the institutions involved are understood, it is
useful to divide the six principles into sub-principles within the administrative institu-
tion. These sub-principles are interpreted differently according to the (classical) three
branches of the state. In the following chapter, some examples clarify both the prin-
ciples and sub-principles.
The principle of properness consists of eight subprinciples (illustrated in Figure
2.1): the requirement of formal carefulness (hearing as part of natural justice), the
prohibition of the abuse of power or more specifically discretionary power, the norm
of material carefulness or rationality, proportionality, legal certainty, legitimate expect-
ations, equality, and reasoning.12 The principle of participation is specified in relation
to the scope of the principle and can be related to persons, objects, and to the stage of
the decision-making process. The principle of transparency applies in relation to meet-
ings, acts, and governmental information. The principle of accountability is divided
into political accountability, judicial accountability, and financial accountability. The
principle of effective administration applies in relation to a governmental act, the aim
of the specific public power, and the effect of regional or international law. Finally, the
principle of human rights is applies in relation to the right of good administration,
classical human rights, and social human rights.
4. Institutions Involved within a Framework

of Checks and Balances
As addressed previously, the three governmental institutions need different inter-
pretations of the principles of good governance with regard to their different com-
petences: the legislative, the executive, and the judicial power. These traditional
institutions can be found at the central, the regional, and the local level, albeit they are
sometimes intertwined. Therefore, it is important to realize that each of these powers
could take different shapes.
In the context of good governance, growing attention is given to the influence of
the so-called ‘fourth power’. This fourth power is mainly understood as the influence
of institutions like the Ombudsman and the Court of Audit. The fourth power term
is also recognized with regard to civil servants. The scholar Crince Le Roy opens his
lecture with a concise overview of several instances of fourth powers in addition to
the public service, such as the existence of independent administrative bodies in the
12
Craig 2008; Craig 2016; Harlow and Rawlings 2009.
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that nobody can know what is doing, except a very few who, for that
purpose, sit near the clerks’ table; or they leave the House and the
Men of Business, as they call them, to mind such matters.’
In 1728, royalty continued to exhibit itself in a THE KING AND
manner which, now, seems rather unedifying. On QUEEN.
Sundays and Thursdays, in the summer, the city sent
curious multitudes to Hampton Court, to see their Majesties dine in
public. The sight-seers went freely into the gallery, where a strong
barrier divided them from the royalties at table. On all occasions, the
pressure against this barrier was immense; on one, it gave way,
when scores of ladies and gentlemen were sent sprawling at the foot
of the king’s table. Away went perukes and hats; for which there was
a furious scramble, with much misappropriation, more or less
accidental. While it lasted, king and queen held their sides and
laughed aloud, regardless of etiquette, or indeed, of becomingness;
but there was provocation to hilarity, when the worshippers were
rolling and screaming at the feet of the national idols.
One of the latter showed how little he was prejudiced against
Jacobites when they had qualities which outweighed their political
defects. Dr. Freind, the Jacobite physician, whom the Prince of
Wales had taken to St. James’s from the Tower, was, on the Prince’s
accession to the throne, appointed physician to the queen. The
doctor did not escape sneers and inuendoes from his old friends. ‘Dr.
John Freind,’ writes Mr. Morrice (June, 1728), ‘is a very assiduous
courtier, and must grow so more and more every day, since his
quondam friends and acquaintances shun and despise him; and
whenever he happens to fall in the way of them, he looks methinks
very silly.’ Atterbury in exile, on hearing of Freind’s
ATTERBURY
death, in 1728, remarked: ‘I dare say, notwithstanding WEARY OF
his station at Court, he died with the same political EXILE.
opinions with which I left him.’ There was a talk in
London of Atterbury himself being at least weary of exile. His later
letters show some longing to die in his native land; and Walpole
seems to have been aware of the fact. In October 1728, Atterbury’s
son-in-law, Morrice, wrote to the bishop,—‘I was assured near two
months ago, that Sir Robert Walpole had given out that you had
entirely shaken off the affair of a certain person,—were grown
perfectly weary of that drooping cause, and had made some steps,
by means of the Ambassador at Paris, towards not being left out of
the General Act of Grace which, it is every now and then talked, will
pass the next Parliament; and that you desired above all things to
come home, and end your days in your own country.’ The next
Parliament, however, was not disposed to lenity.
In the king’s speech, on opening the Session in January, 1729,
there was no reference to the Pretender. The king, however,
attributed certain delays at the Courts of Vienna and Madrid to
‘hopes given from hence of creating discontents and division’ among
his subjects; but if this hope encouraged these foreign Courts, ‘I am
persuaded,’ said the king, ‘that your known affection for me, and a
just regard for your own honour, and the interest and security of the
nation, will determine you effectually to discourage the unnatural and
injurious practices of some few who suggest the means of
distressing their country, and afterwards clamour at the
inconveniences which they themselves have occasioned.’ In the
usual reply, the Lords lamented that the lenity of the constitution was
daily abused, and that the basest and meanest of mankind ‘escape
the infamous punishment due by the laws of the land to such
crimes.’ The Commons, after some debate, employed terms equally
strong. The Heir Apparent used the opportunity to
THE PRINCE OF
illustrate his fidelity to the Protestant succession. WALES AT
Prince Frederick, to convince all good people of his CHURCH.
Protestant orthodoxy, went a round of the London
churches. He was accompanied by a group of young lords and
gentlemen of good character, and, at this time, his reputation did not
suffer by his being judged according to the company he kept. On the
occasion of his dissipated church-going, the prince and his noble
followers took the Sacrament in public: the doors of the church,
whichever it might be, were set wide open, and the church itself was
packed by a mob of street Whigs and Tories, who made their own
comments on the spectacle, which was not so edifying and
impressive as it was intended to be. Fog’s Jacobite paper hinted that
a family not a hundred miles from St. James’s was split up with petty
domestic quarrelling. The family, indeed, dined together twice a
week in public; but people were reminded that outward appearances
were exceedingly deceptive,—and sacramental partakings (it was
said) proved nothing.
The papers of the year bear witness to the
THE MORALS
wickedness and barbarity of all classes of people, of AND
both sexes. Half the highwaymen and footpads were MANNERS OF
members of his Majesty’s own guards. There was not THE TIME.
a street or suburb of London that was free from their violence and
villany. Small offences being as much a hanging matter as the most
horrible crimes, lawless men found it as cheap to be murderers as
petty-larcenists; and all looked to Tyburn as the last scene, in which
they must necessarily figure. Three or four of these fellows, behind
old Buckingham House, stopped the carriage of the Bishop of
Ossory, who was on his way to Chelsea with his son. They took from
the prelate’s finger his episcopal ring (of great value), and from his
hand what seemed to be a pocket book, but which was a Book of
Common Prayer. When the highwayman who held it saw that it was
a Prayer Book, he handed it back to the bishop. ‘Had you not better
keep it?’ said the prelate. ‘Thank you, no!’ rejoined the Pimlico
Macheath, ‘we have no occasion for it at present, whatever may be
the case at some time hereafter.’ The time alluded to was the hour of
‘hanging Wednesday,’ at Tyburn, when each patient was provided
with a Prayer Book, which he often flung at someone in the crowd of
spectators before he was pinioned. There was always a great variety
of company at the triple tree in Tyburn field, built to accommodate a
score. At a push a couple of dozen could be disposed of on a very
busy hanging morning. The sufferers ranged,—from the most brutal
murderers, men and women, down to timid pickpockets and shy
shoplifters, boys and girls, to all of whom the bloody code of the time
awarded the same measure of vengeance. The London mob were
almost satiated with Tyburn holidays. It was an agreeable change for
them to witness the public military funeral of old Mary Davis, who
had served, both as sutler and soldier, in our wars in Flanders. In her
later years, Mary kept a tavern in King Street, Westminster, bearing
the curious sign of ‘Man’s worst ills.’ The crowd there, and about St.
Margaret’s, where she was buried, was as great as at their
Majesties’ coronation.
The press prosecutions of this year were few. A
vendor of some reprints of former very offensive ATTERBURY,
ON MIST.
numbers of Mist’s Journal lost his liberty for a while;
and a poor servant girl, for delivering to a caller (who may have been
a police agent) an obnoxious pamphlet, was sentenced to
imprisonment in Bridewell, there to receive ‘the correction of the
house,’—which meant a severe whipping.
No better proof of Atterbury’s sympathy with Mist and the enemies
of the established Government can be given than in the following
passage, from a letter written at Montpellier, in March, 1729-30. It is
addressed to Sempill, who was a favoured resident at the
Chevalier’s Court, but really a spy in the service of the Court in
London.—‘I shall be concerned if so honest a man as Mr. Mist
should have any just cause of uneasiness. His sufferings, that were
intended to distress and disgrace him, ought to render him in the
eyes of those for whom he suffered, more valuable; and I hope it will
prove so that others may not be discouraged.’
During the next ten years Jacobitisin in the capital THOMSON’S
made no manifestation, but the Whig poets were ‘SOPHONISBA.
rather ostentatious in their loyalty; and the royal family ’
patronised them accordingly. For instance, on the last
day of February, 1730, Thomson produced at Drury Lane his
tragedy, illustrating the virtue of patriotism, namely, ‘Sophonisba.’
The queen herself had attended the full-dress rehearsals, at which
crowded audiences were not so much delighted as they were told
they ought to be. However, the notice the queen condescended to
take of this essay to keep alive the virtue of patriotism, led the author
to dedicate it to Caroline. In that dedication the poet informed both
Whigs and Jacobites that the queen ‘commands the hearts of a
people more powerful at sea than Carthage, more flourishing in
commerce than those first merchants, more secure against
conquest, and under a monarchy more free than a commonwealth
itself.’ In the prologue it was said of Britain,—
When freedom is the cause, ’tis her’s to fight,
And her’s, when freedom is the theme, to write.
In the play Mrs. Oldfield splendidly illustrated the spirit of
patriotism, in the part of the heroine. Cibber acted the subordinate
part of Scipio, in which he suffered at the hands of the Jacobites.
These had not forgotten the offence in his ‘Nonjuror;’ and joining,
hilariously savage with the critics who laughed at Cibber in tragedy,
they hissed him off the stage and out of the part on the second night.
Williams, a moderately good player, succeeded him as Scipio, and
he, on the third night, looked so like the ultra-Whig actor, that the
Jacobite spectators received him with groans and hisses, which,
however, speedily turned to laughter and applause.
But Colley had his reward. The zeal he had CIBBER MADE
displayed against Jacks and Nonjurors, by producing POET
his famous comedy, now obtained its recompense, LAUREATE.
and his sufferings their consolation. In 1730, Cibber
was appointed to the office of Laureate, with its annual butt of sack,
or the equivalent, 50l. Every Jacobite who could pen a line, printed it
against the laurelled minstrel. Apollo himself was pressed into the
Nonjuring faction:—
‘Well,’ said Apollo, ‘still ’tis mine,
To give the real laurel,
For that, my Pope, my son Divine,
Of rivals end the quarrel.
But, guessing who should have the luck
To be the Birth-day fibber,
I thought of Dennis, Tibbald, Duck,
But never dreamed of Cibber.’
The year was one fruitful in plays; but it was observed that when
nuts are plentiful, they are generally of poor quality; so it was with
the plays of 1730. They are all clean forgotten, including
‘Sophonisba’ itself,—the epilogue to which tragedy had this advice to
ladies who patronised foreign productions:—
To foreign looms no longer owe your charms,
Nor make their trade more fatal than their arms,
Each British dame who courts her country’s praise,
By quitting these outlandish modes, might raise
(Not from yon powder’d band, so thin, so spruce)
Ten able-bodied men, for public use.
There was much meanness in the ill feeling of the JACOBITE
Jacobites at even the little mischances that happened HEARNE.
to the royal family. On a dark evening in November, the king and
queen were returning from Kew to St. James’s, their footmen and
grooms carrying torches. A storm of wind blew out the torches, and
at Parson’s Green the carriage and its royal freight was overturned.
Lord Peterborough’s people came to the rescue, with flambeaux,
and the royal pair went on to town with nothing worse than an
assortment of bruises. Such accidents were kindly attributed to the
drunkenness of servants, but that bitter Jacobite Hearne thought that
the mistress, if not the master, could be as drunk as they. Here is a
sample of both thought and expression.—‘The present Duchess of
Brunswick, commonly called Queen Caroline,’ says Hearne, in his
‘Reliquiæ,’ ‘is a very proud woman, and pretends to great subtlety
and cunning. She drinks so hard that her spirits are continually
inflamed, and she is often drunk. The last summer, she went away
from Orkney House, near Maidenhead (at which she had dined), so
drunk that she was sick in the coach all her journey, as she went
along;—a thing much noted.’
The Tories, on their side, were savagely mauled by A JACOBITE
the Whig press. The old Jacobite fire of Earbery was THREAT.
thereby inflamed, especially by the attacks on the old
Tories in the ‘Craftsman.’ The former Stuart champion, who, in 1717,
fled the country to avoid the consequences of publishing his ‘History
of the Clemency of our English Monarchs,’ but whose sentence of
outlawry was reversed in 1725, gave the ‘Craftsman’ warning, in the
following advertisement, which was in the ‘Evening Post,’ of
September 26, 1730,—‘Whereas the “Craftsman” has, for some time
past, openly declared himself to be a root and branch man, and has
made several unjust and scandalous reflections upon the family of
the Stuarts, not sparing even King Charles I., this is to give notice,
that if he reflects further upon any One of that line, I shall shake his
rotten Commonwealth principles into atoms. Matthias Earbery.’ The
writer kept his word in his ‘Occasional Historian.’
To decline to take the oath of abjuration was still a very serious
matter, involving not merely temporary loss, but life-long professional
ruin. Pope had a nephew, Robert Rackett, whose position affords a
striking illustration of these Jacobite times. The story is thus told by
Pope himself, in a letter to Lord Oxford, Nov. 16, 1730: ‘It happens
that a nephew of mine, who, for his parents’ sins and not his own,
was born a papist, is just coming, after nine or ten years’ study and
hard service under an attorney, to practise in the law. Upon this
depends his whole well-being and fortune in the world, and the
hopes of his parents in his education, all which must inevitably be
frustrated by the severity of a late opinion of the judges, who, for the
major part, have agreed to admit no attorney to be sworn the usual
oath which qualifies them to practise, unless they also give them the
oaths of allegiance and supremacy. This has been
DIFFICULTIES
occasioned solely by the care they take to enforce an IN
Act of Parliament, in the last session but one, against PROFESSION
fraudulent practices of attornies, and to prevent men AL LIFE.
not duly qualified as attornies from practising as such. It is very
evident that the intent of the Act is in no way levelled at papists, nor
in any way demands their being excluded from practising more than
they were formerly. Therefore, I hope the favour of a judge may be
procured, so far as to admit him to take the usual attorney’s oath,
without requiring the religious one.’ Pope hopes one of the judges
will be good-natured enough to do this, and he suggests Judge Price
for Lord Oxford’s manipulation. ‘In one word the poor lad will be
utterly undone in this case, if this contrivance cannot be obtained in
his behalf.’ Lord Oxford applied, not to Price, but to ‘Baron C.’
(Carter or Comyns, as Mr. Elwin suggests). This judge, says Pope
(Dec. 1730), ‘showed him what possible regard he could, and
lamented his inability to admit any in that circumstance, as it really is
a case of compassion.’ Ultimately the obstacle seems to have been
surmounted. Within a few months of half a century later, Pope’s
nephew died in Devonshire Street, London, where he had ‘clerks’ in
his employment. ‘He had, therefore,’ says Mr. Elwin in a note to the
letter from which the above extract is taken, ‘managed to make his
way in some line of business.’
In the year 1731 died a popular and political writer,
DEATH OF
in the announcement of whose death neither his DEFOE.
popular works nor his provocating agency in the
service of Government is referred to. The event is thus recorded in
Read’s ‘Weekly,’ for May 1st, 1731: ‘A few days ago died Mr. Defoe
Sen., a person well known for his numerous and various writings. He
had a great natural genius and understood very well the Trade and
Interest of this Kingdom. His Knowledge of Men, especially of those
in High Life, with whom he was formerly very conversant, had
weakened his Attachment to any Party, but in the Main, he was in
the Interest of Civil and Religious Liberty, in behalf of which he
appeared on several remarkable Occasions.’
In the month of July the Government began to look ‘FALL OF
sharply after political offences on the stage. At the MORTIMER.‘
Haymarket Theatre, an historical tragedy, called ‘The
Fall of Mortimer,’ was announced; and, in the announcement the
Ministry saw an attack on Walpole, and probably on the queen. The
grand jury of the County of Middlesex delivered a long ‘presentment’
to the Court of King’s Bench, in which the new play was described as
‘a false, infamous, scandalous, seditious, and treasonable libel,
written, acted, printed, and published against the peace of our
Sovereign Lord the King, his crown and dignity.’ It is not clear that
the play was ever more than rehearsed. On the night it was to have
been regularly acted, a body of messengers and constables rushed
through the stage door in order to make capture of the players.
These were attired, and ready for the curtain to go up; Mullart, as
Mortimer, stood plumed and gallant at the centre of the stage. At the
first alarm, however, he and his mates took to flight, decked out as
they were, and succeeded in escaping. This play, which some thirty
years later was again turned to political purpose, grew out of the
brief fragment and the sketched-out plot of a play designed by Ben
Jonson. In the few lines he wrote, there are the following against
upstarts and courtiers. These were held to be adverse to Walpole’s
peace as well as the king’s. For example:—
Mortimer
Is a great Lord of late, and a new thing!
* * * * *
At what a divers price do divers men
Act the same things. Another might have had
Perhaps the hurdle, or at least the axe,
For what I have this crownet, robes, and wax.
There is a fate that flies with towering spirits
Home to the mark, and never checks at conscience.
* * * * * We
That draw the subtle and more pleasing air
In that sublimed region of a Court,
Know all is good we make so, and go on,
Secured by the prosperity of our crimes.
This matter passed over. A press war sprang up in another
direction.
Lord Hervey published a pamphlet called, ‘Sedition DUELS AND
and Defamation Displayed.’ An anonymous author SERMONS.
speedily followed it up by ‘a Proper Reply to a late
scandalous libel, called “Sedition and Defamation displayed.”’
Hervey challenged William Pulteney, the reputed author of the
Proper Reply. The parties fought in the new walk in the upper part of
St. James’s Park. Their respective friends, Sir John Rushout and
Henry Fox looked on, while the adversaries made passes at each
other; but, when they closed, the seconds rushed in, parted, and
disarmed them. A little plaister was all the remedy required to cover
all the damage done by a few scratches on Lord Hervey’s person.
Pulteney’s name, however, was struck out of the Council Book, and
he was ignominiously put out of the commission of the peace.
The royal family proceeded to show that there was no prejudice
on their part against the noble art of printing. A printing press and
cases were put up at St. James’s House (as the old palace used to
be called), and the noble art of printing was exhibited before their
majesties. The future victor of Culloden, the Duke of Cumberland,
worked at one of the cases. He set up in type a little book, of which
he was the author, called ‘The Laws of Dodge Hare.’ The duke, at
this time, also took lessons in ivory-turning, which was considered to
be a ‘most healthful exercise.’ Generally on Sunday, while the king
and queen were in the Chapel Royal, one of the Bishop of London’s
chaplains preached to the young Duke and the Princesses Mary and
Louisa in his royal highness’s apartment! As his royal highness had
recently stood godfather, in person, to the son and heir of Lord
Archibald Hamilton, he was supposed to be of importance enough to
be thus preached to. The young princesses were thrown in to make
up a juvenile congregation.
Very much seems to have been made of the young duke this
year, as if he had a mission to perform. A little establishment was set
up for him, and he became a ‘personage.’ The papers solemnly
proclaimed how the Duke of Cumberland appeared in public, for the
first time, with his own coach and livery servants. He paid a visit to
Sir Robert Walpole, in Arlington Street, and went afterwards to Major
Foubert’s Riding House (on the site of what is now called Major
Foubert’s Passage, Regent Street), and there received his first
lesson in riding.
The only manifestation of party feeling this year was made by the
citizens of London. A subscription had been entered into for the
casting of a statue of William III. When it was executed, the city,
influenced by Jacobite feeling, refused to receive it. Bristol was more
loyal. The citizens there bought the effigy that London despised, and
William soon stood erect in the midst of Queen Square.
Among the miscellaneous chronicling of the year, YOUNG LORD
there is one made by most of the Saturday papers to DERWENTWAT
this effect: ‘Yesterday, Friday, August 19th, the Lord ER.
Derwentwater arrived at his house in Poland Street,
from France.’ This was John, the late earl’s only son. He came to
London to consult Chiselden, the great physician. He was hopelessly
ill of dropsy; and a double sympathy attracted crowds of Jacobites to
resort to Poland Street to manifest their respect for the suffering son
of one of the martyrs to the cause of the Stuarts.
When in 1732 the National Defences became a A STANDING
serious matter for consideration, the Jacobites ARMY.
affected to think that an army of 12,000 men would
suffice for the protection of the realm. The Whigs insisted that at
least 17,000 would be required for its defence. The London Whig
papers asserted that 4,000 men would have all their work to do in
keeping Scotland quiet. The fortified towns of England would require
2,000 men. The remainder would not be sufficiently strong in
numbers, for sudden emergencies, if the total was only to be 12,000.
Such insufficiencies would leave many places without defence. This
would encourage Risings. Open insurrection would lead to foreign
invasion, with the Pretender at the head of it. The wind that would
bring over his hostile fleet would shut up our own in our harbours.
Why had Jacobitism increased tenfold in the last four years of Queen
Anne? Because the High Priests had been unmuzzled, and the
necessary forces had been disbanded. The Preston Rebellion, as
the outbreak of 1715 was contemptuously called, would never have
happened at all if we had had 17,000 men under arms. As it was, it
was crushed not by the bravery or ability of our troops and officers,
but by the incapacity and timidity of the rebels themselves. So ran
Whig comments in Parliament.
Unless the Government in London were sure that there were as
many majorities in all Corporations against the Chevalier’s
pretensions as there were ‘in certain places against King William’s
statue,’ the administration was conjured to keep up the numbers of
the army. While the Jacobites had hopes, England must entertain
fears. Had Louis XIV. lived a few months longer, a French army
would have been in full march to seat the Chevalier on a throne at
Westminster. The Regent, Duke of Orleans, did not help the
Pretender, simply because he needed our alliance against Spain
which refused to recognise his Regency.
At home there was a seeming fixed determination THE DUKE’S
that the Duke of Cumberland should be a soldier, and GRENADIERS.
be trained to the ability necessary to meet future
emergencies. The youthful prince had military inclinations. That
military spirit was stimulated by the formation of a company of
youthful grenadiers out of a dozen sons of persons of quality. Their
dress resembled the uniform of the 2nd Foot Guards. ‘His Royal
Highness the Duke,’ say the journals of the day, ‘diverts himself with
acting as corporal, choosing to rise regularly in Preferment. The
number being but twelve, is to be increased.’ Fog’s Jacobite journal
says maliciously,—‘increased in case of War.’
Observance of the solemn anniversary of the 30th of January
used to be considered as a protest that all parties might make
against ‘the sin of rebellion.’ However this may be, reverence for the
Royal Martyr seems to have suffered some diminution in the year
1732.
When Dr. Hare, Bishop of Chichester, preached GENERAL
before the House of Lords, in the Abbey, on the 30th ROGUERY.
of January, the only peers present were the Lord
Chancellor, Lord Onslow, and the Bishops of Peterborough, Lincoln,
Lichfield and Coventry, St. David’s, and Rochester. The sermon was
thoroughly political. The text was from Proverbs xxiv. 21, ‘My son,
fear thou the Lord and the king: and meddle not with them that are
given to change.’ The sermon was described as ‘most extraordinary;
the preacher vindicated the King’s honour and sincerity in his
concessions to the Parliament;’ and he insisted strongly on the uses
of ‘keeping up the day.’
Later, the Jacobites found some little satisfaction in the smart
reprimand delivered by the Speaker of the House of Commons to Sir
John Eyles, for directing the secretary of the Commissioners for the
sale of forfeited estates to set his name to an order for the disposal
of the Earl of Derwentwater’s estates, in the sale of which, great
frauds were discovered. But where was fraud not found at that time?
From the benches of Parliament to the council-room of the Charity
Commissioners, rogues abounded; the country was sold by the
Senate, and the poor were plundered by their trustees. Yet, these
things caused less emotion in the London coffee-houses than the
report which came of the death of Bishop Atterbury at Paris, in
February. The event was simply recorded in the ‘Gentleman’s
Magazine’ in these uncompromising words:—
‘February 15, 1732.—The Revd. Dr. Francis DEATH OF
Atterbury, late Bishop of Rochester, died at Paris, ATTERBURY.
justly esteemed for his great learning and polite
conversation.’ In what sense the Jacobites esteemed him may be
seen in an expression in one of Salkeld’s letters, wherein the writer
laments the loss of ‘that anchor of our hopes, that pillar of our
cause.’
Pope, in a letter to Lord Oxford, referred to Atterbury’s death in
these terms: ‘The trouble which I have received from abroad, on the
news of the death of that much-injured man, could only be mitigated
by the reflection your Lordship suggests to me—his own happiness,
and return into his best country, where only honesty and virtue were
sure of their reward.’ Pope could not have thought the ex-bishop
innocent of the treason, of which he was undoubtedly guilty; for the
poet had knowledge of the treachery before the Jacobite prelate’s
death. Samuel Wesley must have known it too, but he ignored all but
his patron’s virtues in a very long elegy on Atterbury’s decease,
written in very strong language, of which these lines are a sample:—
Should miscreants base their impious malice shed,
To insult the great, the venerable, dead;
Let truth resistless blast their guilty eyes!
—which is a sort of malediction that is now quite discarded by moral
and by fashionable poets.
The ‘Craftsman’ of May 6th announces the arrival of Mr. Morrice,
the High Bailiff of Westminster, at Deal. On landing he was taken into
custody and sent up prisoner to London, where, after being
rigorously examined by one of the Secretaries of State, he was
admitted to bail. The corpse of the ex-bishop was arrested as it
came up the river. It was taken to the Custom House, where, the
coffin being examined for papers, and nothing compromising being
found, the body, according to the facetious ‘Craftsman,’ was
discharged without bail. Great opposition was made to a request for
burial in the Abbey; and when this was granted, the ‘Craftsman’ was
‘not certain as to the usual Church ceremony being read over the
corpse.’
The public were, at all events, kept in the dark, lest BURIAL OF
Jacobite mobs should make riotous demonstrations at ATTERBURY.
the ceremony. ‘On Friday, May 12th,’ says Sylvanus Urban, ‘the
Corpse of Bishop Atterbury was privately interred in his Vault in
Westminster Abbey. On the Urn which contained his Bowels, &c.,
was inscribed: “In hac Urnâ depositi sunt cineres Francisci Atterburi
Episcopi Roffensis.” Among his papers brought over by Mr. Morrice
was “Harmonia Evangelica,” in a new and clearer Method than any
yet publish’d. ’Tis also said he translated Virgil’s “Georgics,” which
he sent to a friend with the following Lines prefix’d,
Haec ego lusi
Ad Sequanæ ripas, Tamesino a flumine longe
Jam senior, fractusque, sed ipsa morte meorum
Quos colui, patriæque memor, neque degener usquam.’
They who were of the prelate’s way of thinking made him, in one
sense, speak, or be felt, even in his grave. The body of the Jacobite
Bishop of Rochester had scarcely been deposited at the west end of
the south aisle of Westminster Abbey, of which he had been the
Dean, when copies of an epigrammatic epitaph were circulating from
hand to hand, and were being read with hilarity or censure in the
various London coffee-houses and taverns. It ran to another tune
than that made upon him by Prior, namely:—
His foes, when dead great Atterbury lay,
Shrunk at his corse, and trembled at his clay.
Ten thousand dangers to their eyes appear,
Great as their guilt and certain as their fear!
T’ insult a deathless corse, alas! is vain;
Well for themselves, and well employ’d their pain,
Could they secure him,—not to rise again!
The printsellers reaped a harvest by selling the Bishop’s portrait.
The most popular was sold by Cholmondely in Holborn, but he was
had up before the Secretary of State, and was terrified by that official
into suppressing the sale.
All London, that is, what Chesterfield called ‘the AT
Quality,’ went seaward in August. The cream of them SCARBOROU
settled on the Scarborough sands. ‘Bathing in the GH.
sea,’ says Chesterfield, ‘is become the general practice of both
sexes.’ He gives an amusing account of how ‘the Quality’ from
London looked, at Scarborough, and he jokes, in his peculiar
fashion, upon plots, Jacobites, and ministers. He writes to the
Countess of Suffolk: ‘The ladies here are innumerable, and I really
believe they all come for their healths, for they look very ill. The men
of pleasure are Lord Carmichael, Colonel Ligonier, and the
celebrated Tom Paget, who attend upon the Duke of Argyle all day,
and dance with the pretty ladies at night. Here are, besides,
hundreds of Yorkshire beaux, who play the inferior parts and, as it
were, only tumble, while those three dance upon the high ropes of
gallantry. The grave people are mostly malignants or, in ministerial
language, “notorious Jacobites,” such as Lord Stair, Marchmont,
Anglesea, and myself, not to mention many of the House of
Commons of equal disaffection. Moreover, Pulteney and Lord
Cartaret are expected here soon; so that if the Ministry do not make
a plot of this meeting, it is plain they do not want one for this year.’
Chesterfield was branded as a ‘notorious Jacobite,’ NOTORIOUS
because he had opposed Walpole’s famous Excise JACOBITES.
Bill, this year. As a consequence, he was deprived of
his staff of office as Lord Steward of the Household. While
Chesterfield was writing so airily to Lady Suffolk, the king was laying
out 3,000l. in repairing the Palace of Holyrood. A dozen years later,
when ‘news frae Moidart’ reached the London Jacobites, they
laughed at the idea of the ‘Duke of Brunswick’ having made
Holyrood suitable for the reception of Charles Edward, Prince of
Wales.
In the meantime a voice here and there from the metropolitan
pulpits ventured to hope the king would be kept by divine guidance,
in a safe groove. The future hero of Culloden was taking lessons in
philosophy from Whiston, and in mathematics from Hawksbee; and,
at a funeral more public than Atterbury’s, the Jacobites assembled in
Poland Street, to pay a last mark of respect to the ‘Earl of
Derwentwater,’ the patient whom great Cheselden could not save,
and whose
corpse was carried to Brussels to be deposited by
THE EARL OF
the side of that of his mother, Anne Webb. The so- DERWENTWAT
called ‘Earl’ John, son of the attainted and beheaded ER.
peer, as a sick man, was left unmolested, though he
called himself by a title unrecognised by the Government.
CHAPTER III.
(1733 to 1740.)
he feverish imagination of Tories who were decided
Jacobites also, saw impossible reasons for every
event. From the 23rd to the 30th of January, 1733,
there raged in the metropolis what would probably now
be called an influenza. The disease was then known as
the ‘London head-ache and fever;’ and it was fatal in very many
cases. Some of the Jacobites at once discovered and proclaimed the
cause and the effect of this visitation, which carried off fifteen
hundred persons in the metropolis. Observe the two dates. ‘On the
23rd of January, 1649, Charles denied the jurisdiction of his Judges,
who, nevertheless, sent him to the block on the 30th.’ The week of
mortal fever and headache was only an instalment of that former
week’s work which ended in the martyrdom of the Chevalier de St.
George’s grandfather! Horace Walpole asserts that George II.
always attended Church on the 30th of January. The king and the
whole Court went thither in mourning. All who had service to perform
at Court, put on sables. The king’s sister, the Queen of Prussia, was
a declared Jacobite, ‘as is more natural,’ says Walpole, ‘for all
princes who do not personally profit by the ruin of the Stuarts.’[2]
The royal speech on opening Parliament was of a
APPROACHIN
peaceful character. The Lords re-echoed it in their G STORM.
address, but in the Commons, both Sir John Barnard
and Shippen moved amendments to the address, from that House.
The speech had recommended an avoidance of all heats and
animosities. The theme of Barnard and Shippen was that the
liberties and the trade of the nation were probably menaced; that a
general terror was spreading of something being about to be
introduced, perilous, nay destructive, to both. Men of all parties being
subject to this terror, ‘they cannot,’ said Shippen, ‘be branded with
the name of Jacobites or Republicans, nor can it be said that this
opposition is made by Jacobites or Republicans. No, the whole
people of England seem to be united in this spirit of jealousy and
opposition.’ The address, of course, was carried. But a storm was
approaching.
This year, 1733, was the year of the famous
WYNDHAM IN
debates on the motions for a permanent increase of PARLIAMENT.
the army, and on the Excise question introduced by
Walpole, who proposed to transfer the duties on wine and tobacco
from the Customs to the Excise. The two propositions set the country
in a flame. The universal cry was that they were two deadly blows at
trade and liberty. The first proposal was carried; Walpole, under
pressure of large minorities against him in the House, and larger
adverse majorities out of it, withdrew the Excise measure. All his
opponents were branded by his partisans as Jacobites and
something more. This gave opportunity to the Jacobites in
Parliament, and increased the vigour of their opposition. It was
against the motion for increasing the number of the Land Forces,
that the ‘Patriot’ Sir William Wyndham spoke with almost fierce
sarcasm. ‘As for the Pretender, he did not believe there was any
considerable party for him in this nation. That pretence had always
been a ministerial device made use of only for accomplishing their
own ends; but it was a mere bugbear, a raw head and bloody bones
fit only to frighten children; for he was very well convinced his
Majesty reigned in the hearts and affections of his people, upon that
his Majesty’s security depended; and if it did not depend on that, the
illustrious family now on the throne could have little security in the
present number, or in any number, of the standing forces.’
A few press prosecutions, a few imprisonments of Jacobite
tipplers who would drink the health of King James in the streets, or
call it out in church services; a weeding-out of disorderly soldiers
from otherwise trustworthy regiments; and a little trouble arising from
pulpit indiscretions, are the only symptoms of yet uncertain times, to
be detected. The ‘Craftsman,’ of August 4th, chronicles the
discharge of ‘several Private Gentlemen out of the Lord Albemarle’s
troop of Life Guards, some as undersized, and others as
superannuated, but such have been allowed fifty guineas each and
their college. His Lordship proposes to give every Private Gentleman
in his Troop a new Surtout and a pair of Buckskin breeches, at his
own Expense.’
Later, in the autumn, preachers took for a subject
POLITICAL
the want of respect manifested, by the mass of SERMON.
people, for their ‘betters,’ including all that were in
authority. On Saturday, October 13th, the ‘Craftsman’ had this
paragraph, showing how the pulpit was lending itself to politics as
well as to morals:—‘Last Sunday a very remarkable sermon was
preached at a Great Church in the City, against speaking evil of
dignities, in which the Preacher endeavoured to show the
unparalleled wickedness and Impudence of Tradesmen meddling in
Politicks, and particularly of their riotous Procession to Westminster
to petition against the late Excise scheme (so evidently calculated for
their good), which he placed among the number of Deadly Sins, and
recommended Passive Obedience and Non-Resistance, for which
the Audience were so unkind as to laugh at him so much that he shut
up his book before he had done and threatened them with a severe
Chastisement.’
The fear of the ‘Pretender,’ the recruiting in back STORMY
parts of London for ‘foreign service,’ and the relations DEBATES.
of England with Continental powers, kept up a
troubled spirit among those who wished to live at home, at ease.
One of the most remarkable debates of the session occurred in the
House of Lords. The king had exercised, and wished to continue to
exercise, a right (such as he supposed himself to possess) of
dismissing officers from the army, without a court martial. The Duke
of Marlborough (Spencer) brought in a Bill to prevent such summary
expulsion, at the king’s pleasure. In the course of the debate the
figure of the Pretender was brought forward. The Duke of Newcastle
warmly supported the king’s ‘prerogative.’ There would be no safety,
he said, unless the king held that right. ‘There is,’ he remarked, ‘at
present a Pretender to the Crown of these realms, and we may
conclude that there will always be plots and contrivances in this
kingdom against the person in possession of the throne. While there

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Effectiveness’, ‘Ombudsman and Good Governance, the Principle of Participation’,

I. DEVELOPING THE CONCEPT OF GOOD

2. An Overview of Good Governance 15

3. Good Governance on Multiple Levels 25

4. Principles of Good Governance: The Theoretical Perspective 55

5. The Rule of Law and Good Governance 75

2. Different Historical Roots and Traditional Perspectives 80

6. Democracy and Good Governance 91

8. The Principle of Transparency 111

9. The Principle of Participation 129

10. The Principle of Effectiveness 141

11. The Principle of Accountability 157

12. The Principle of Human Rights 171

14. Implementation of the Principles of Good Governance on

15. Implementation of the Principles of Good Governance on

17. Implementation of the Good Governance Principles on

18. Conclusions on Good Governance: Concept and Context 270

Court of First Instance

East African Court of Justice

European Court of Human Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

1. Good Governance: A Cornerstone of the Modern State

most important elements of democracy: legislation by parliament, ministerial account-

2. Good Governance and Law

3. Good Governance and Human Rights

Treaty UDHR ICCPR ICESCR ECHR ESC

Due care (13) 6(1) (due care)

A second, relatively new, development in the strong relation between human

4. Good Governance and the Main Developments

5. Structure of the Three Parts of this Book

In this chapter, an overview of the different aspects of good governance is presented.

1. Need for Good Governance

2. Concept of Good Governance

(a) Governance and administration

(b) Good governance and principles of good governance

(c) Principles of good governance and principles

3. Specification of the Principles of Good Governance

Furthermore, the principles could be interpreted differently depending on the char-

4. Institutions Involved within a Framework

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(a) Governance and administration

(b) Good governance and principles of good governance

(c) Principles of good governance and principles