When Mandates Stretch Too Far: The Quiet Risk of Institutional Overreach
When institutions expand their authority beyond clear legislative grants, they undermine the very accountability mechanisms that sustain public trust.
Modern institutions - regulators, commissions, agencies and administrative bodies - sit at the centre of public life. They set standards, issue decisions, evaluate risks and interpret rules that shape everything from financial conduct to digital services. Their authority, however, is not limitless. It is anchored in legislation that defines what they may and may not do.
Yet across many jurisdictions, a subtle pattern has emerged: institutions taking actions that drift beyond their original mandate. Often unintentional, sometimes well-meaning, this kind of mandate expansion raises a fundamental question about legal integrity. What happens when agencies start exercising powers they were never clearly given?
The Slow Expansion of Administrative Power
Institutional overreach rarely happens through dramatic shifts. Instead, it tends to occur incrementally. A regulator interprets a broad statutory phrase more expansively than before. A commission issues guidance that operates like binding law. An agency adopts powers 'implied' rather than explicitly authorised. Temporary practices introduced for convenience slowly become standard procedure.
No single step appears controversial, but the cumulative effect can reshape the institution's role far beyond what legislatures intended.
As Professor Paul Craig observes in his work on administrative law, the danger lies in what he terms 'creeping competence' - the gradual assumption of authority through interpretation rather than express grant. This phenomenon is particularly pronounced where enabling statutes contain broad, open-textured language that invites expansive reading.
Mandate creep is not always the result of ambition. Sometimes it arises from resource constraints, policy gaps or pressure to act quickly in areas where formal rules have not caught up. The intention may be to solve problems efficiently, but efficiency cannot substitute for legality.
Lord Justice Laws made this point forcefully in his 2013 lecture 'The Rule of Law in the Real World': 'The state's first duty is not to be efficient, but to be lawful. Efficiency pursued at the expense of legality is not good administration. It is tyranny with a smile.'
Why Clear Mandates Matter
The rule of law depends on predictability. Public bodies must be able to point to a legal foundation for every action they take. Without this, several problems arise.
Erosion of Accountability
When an institution steps beyond its defined powers, it becomes difficult to assign responsibility. If something goes wrong, who authorised the action? Was it grounded in law or simply precedent?
Professor Carol Harlow, writing on accountability in administrative law, notes that 'power without clear legal provenance is power that evades scrutiny'. When institutions act beyond their statutory remit, traditional accountability mechanisms - parliamentary questions, judicial review, ombudsman investigations - struggle to find purchase.
Inconsistent Decision-Making
Unclear authority leads to uneven outcomes. Different officials may interpret the same unwritten power differently, weakening coherence across cases and over time.
Reduced Public Trust
People trust institutions when they see transparent procedures and defined limits. Overreach, even subtle, can create perceptions of arbitrariness.
The public law scholar Professor Martin Loughlin argues that institutional legitimacy rests on what he calls 'political jurisprudence' - the visible alignment between legal authority and institutional action. When that alignment breaks down, trust follows.
Pressure on the Courts
Judicial bodies are often left to resolve conflicts created by institutional overreach, testing the boundaries of interpretation and stretching case law into areas that legislation never anticipated.
As Lord Carnwath observed in his 2016 Hamlyn Lecture, 'The courts should not be required to rescue institutions from the consequences of their own legal overreach. Judicial creativity is no substitute for legislative clarity.'
The Temptation to Fill the Gaps
Governance does not stand still. New technologies, emerging markets and social changes create situations where existing laws feel outdated or incomplete. Institutions are often urged - by governments, industry or the public - to 'do something', even when their mandate is unclear.
This temptation is particularly strong in areas like digital platforms and data governance, environmental regulation, financial technology, AI oversight and public health rulemaking.
The risk is that gaps in legislation become filled by administrative action, bypassing parliamentary scrutiny or public consultation.
Professor Richard Ekins of Oxford's Policy Exchange has written extensively on this tension. In his view, 'When institutions take it upon themselves to fill legislative gaps, they displace democratic deliberation with bureaucratic judgement. The question is not whether the gap needs filling, but who has the authority to fill it.'
This is not a question of motive, but of structure. Institutions should not have to stretch their mandates because the law has not kept pace. The solution lies in legislative clarity, not institutional improvisation.
The Importance of Transparent Boundaries
Strong institutions acknowledge the limits of their authority. Clear boundaries do not restrict good governance - they protect it.
Several measures can help prevent mandate drift.
Precise Legislative Drafting
Statutory mandates should include clear definitions, procedural requirements and scope limits. Vague or open-ended duties invite inconsistent interpretation.
The former Parliamentary Counsel Daniel Greenberg has argued that 'legislative precision is not pedantry. It is the foundation of lawful administration.' His work on drafting best practice emphasises the importance of explicit scope provisions and definitional clarity.
Regular Mandate Reviews
Parliaments and oversight bodies should periodically assess whether institutions are operating within their legal frameworks or absorbing responsibilities by default.
Clear Public Documentation
Agencies should publish explanations of their legal authority when introducing new policies, practices or enforcement approaches.
Strengthened Appeal and Review Mechanisms
Independent review ensures that expansion of power cannot happen unchecked.
Sir Stephen Sedley, reflecting on his career on the Court of Appeal, observed that 'judicial review exists not to frustrate good administration but to ensure it remains lawful administration. The two are not the same thing, and must never be conflated.'
Encouraging Institutional Self-Restraint
A culture of legality - where officials are encouraged to respect boundaries rather than stretch them - is as important as any formal safeguard.
Conclusion
Institutional overreach often happens quietly. It does not always stem from overconfidence or ambition. Sometimes it is simply the by-product of unclear legislation, rapid technological change or expectations that institutions solve problems beyond their remit.
But the principle remains constant: legal authority must be traceable, transparent and anchored in law.
Institutions derive legitimacy not from the breadth of their actions, but from the clarity of the powers they are given and the discipline with which they exercise them.
When mandates expand without being publicly debated and formally granted, the risk is not only administrative inconsistency. It is the slow erosion of the rule-of-law safeguards that keep institutions trusted, predictable and accountable.