This post (co-written with Professor Christopher Forsyth) was first published on the UK Constitutional Law Blog. It may be of more direct interest to current (than to prospective) law students – in particular, to those taking constitutional, administrative or public law modules. In the post, we respond the question, posed by the Commission on a Bill of Rights, whether there should be a right to administrative justice.
In its second consultation paper, the Commission on a Bill of Rights asks whether a UK bill of rights should contain a right to administrative justice. This is a question that should be approached with considerable caution. It is not self-evident that inclusion of administrative justice in a bill of rights would protect administrative justice more fully or more securely than the law does at present. After all, it can confidently be said that the legal systems of the UK already recognise a right to administrative justice. The right is a strong one, in that it is embedded deep within the common law constitution and reflects a wide range of principles of good administration that condition the relationship between the individual and the state. Against this background, it is necessary to ask what, if anything, a textual right to administrative justice would add. The risk, we will argue, is that it may well add needless layers of complexity and uncertainty while making little by way of a positive contribution. Indeed, it might hamper the development of the law by the judiciary.
The scope of a right to administrative justice: lessons from South Africa
We begin with a comparative glance at the right to administrative justice protected by the South African Constitution 1996. This illustrates some of the difficulties that can readily arise. Given the very poor record the South African courts during the apartheid years in subjecting to law the executive’s exercise of its far reaching administrative powers, it was inevitable that when the moment for constitutional reform came there was a strong political will to subject the executive to the rule of law. What eventually emerged in the final constitution was section 33 which provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair” and that “Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.
It is plain that the concept “administrative action” plays a crucial part in determining whether section 33 is engaged or not. If the action in question is not “administrative” the protections of section 33 do not apply. The interpretation of the phrase “administrative action” in section 33 is assisted by the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). This was enacted to give effect to the section 33 right, and contains a long and complicated definition of “administrative action”. The result of these provisions has been that the concept of “administrative action” has moved to the centre stage in South African administrative law. As Professor Cora Hoexter, a leading expert on South African administrative law, remarks: “the concept of administrative action [has become] the focus of administrative law jurisprudence to an extent that had not been anticipated. What had previously been a non-issue in our administrative law became its most noticeable feature. The threshold administrative action enquiry soon took up far more space in the law reports than any other issue.”
What this means is that the energies of counsel and judges were diverted into the rather formalistic question of whether a particular action constituted “administrative action”, and away from the far more important question of what fairness required in the circumstances. The law in South Africa has become more complicated and uncertain; it is not clear that the constitutionalisation of the right to administrative justice has improved matters. Some of the difficulties in South Africa derive from deficiencies in the drafting of the PAJA, but clearly the issue is one of principle. A line needs to be drawn between those exercises of power which do engage the right to administrative justice and those exercises of power that do not. Inevitably disputes will arise around that boundary line. And that creates the danger that the precise course of the boundary line rather than the substantive issues of justice and fairness will come to dominate the law.
Of course one answer to this difficulty would be to make the boundary line clear. Article 41 of the EU Charter of Fundamental Rights, for instance, provides for a right to good administration but only in relation to matters dealt with by “the institutions, bodies, offices and agencies of the Union”. The “institutions, bodies, offices and agencies of the Union” is a relatively clear and well defined concept. But there is no similar clear boundary to the reach of public power in the UK; that boundary is notoriously ill defined and has often caused difficulty. When public bodies exercise private powers and private bodies exercise public powers, where does “administrative action” start or finish? The well known difficulty in determining whether a particular body is a “core” public authority, a “hybrid” public authority or not a public authority at all in terms of section 6 of the Human Rights Act 1998 is simply an example of this uncertainty, yet is has a vital effect on the reach of the HRA. The bottom line is that the boundary between public and private power is not easy to draw in the UK context – and as the experience with section 6 of the HRA shows, locating that boundary is a task that is not necessarily aided by the existence of a statutory text.
Symbolism, status, clarity
But if these difficulties of reach were overcome, might the inclusion of a right to administrative justice add clarity to the law within the boundary? This depends in part upon the form of any bill of rights. If the bill of rights were drafted in the loose and lofty language generally characteristic of such texts, it would be unlikely to add anything meaningful to, or clarify, the existing jurisprudence. But even a more detailed text might achieve little in this regard, given that so many of the principles of good administration are highly sensitive to the statutory and factual context of individual sets of circumstances. A further point to bear in mind is that an attempt to codify the principles of good administration in a reasonable amount of detail might risk inhibiting the development of an area of law that owes so much to the creativity of the judiciary.
What purpose, then, might be served by the inclusion of a right to administrative justice in a bill of rights? A right to administrative justice, or to good administration, in a bill of rights might be of symbolic significance. For example, it might be considered to be evidence of the seriousness with which the right is taken. Indeed, if a bill of rights were to be adopted, the omission of a right to good administration might (rightly or wrongly) be perceived as indicating its relative lack of importance. But the extent of any such advantage – or, perhaps more accurately – avoidance of disadvantage would need to be weighed carefully against the potential complications identified above.
Allied with, but distinct from, the point about symbolism is the matter of the status of any right to administrative justice. It may be thought that the inclusion of such a right in a bill of rights would result in its enjoying an enhanced status. On this view, inclusion would not merely signify, in symbolic terms, the importance attached to the right: it would also ascribe to it, in some concrete way, a status exceeding that which it presently possesses. However, whether this would be the case turns upon two main factors.
The first concerns a presently unknown matter: viz the constitutional status that a bill of rights would itself have. At present, it is entirely unclear what status any bill of rights would have – and how and to what extent such a statutory text would protect the rights contained in it. Would rights be protected interpretatively, as is the case at present in relation both to Convention rights (under the HRA) and common law constitutional rights? Or would a bill of rights somehow confer a higher level of protection – and, if so, what form would that take? The uncertainty that exists in relation to this matter can be regarded as a significant flaw in the process undertaken by the Commission. Asking whether a given right – be it a right to administrative justice or some other right – should be included in a bill of rights and, if so, what the content of that right should be is somewhat meaningless unless there is already some sense, in the first place, of what inclusion would mean in practice.
The second factor concerns the present status of the “right” to good administration. The effect of enshrining such a right in a bill of rights necessarily turns not only upon the mode and strength of protection provided for by the statutory text, but also upon the existing status of the right. Subject to the point made in the following paragraph, it is only by comparing these two statuses that an assessment can be made of the likely effect of including the right in a bill of rights. In fact, the right to administrative justice, as it currently exists, has an unusually — perhaps unique — constitutional status. At the very least, it can be said – on the strength of cases such as Anisminic Ltd v Foreign Compensation Commission– that it does not yield in the absence of crystal clear contrary provision in primary legislation. And it is questionable – as, for instance, certain dicta in R (Jackson) v Attorney-Generalindicate – whether it yields even in those circumstances. On this view, inclusion in a bill of rights may not enhance — and might, subject to a point made in the following paragraph, conceivably diminish — the status of right.
A final point should be noted. It concerns the relationship between any bill of rights and common law constitutional rights – another area of uncertainty that contributes to the vacuum within which the consultation process has taken place. Politicians who advocate repeal of the Human Rights Act – whether or not coupled with the enactment of a (weaker) bill of rights – implicitly assume that getting rid of the HRA would, at a stroke, surgically remove the Convention rights from domestic law. But this misconceives the parallels – and somewhat osmotic relationship – between HRA/Convention rights on the one hand and common law rights on the other. Just as the HRA has not – and, one view at least, could not – revoke common law rights, so it is unlikely that such rights would – or, arguably, could – be disturbed by a bill of rights. This point is of significance for two reasons. It adds weight to the argument about complexity, in that any textual right to administrative justice would not be exhaustive; existing grounds of review (in their current and potentially future, evolved forms) would remain available. At the same time, the likely relationship between existing rights and a bill of rights means that including within the latter a right to administrative justice may well leave intact the existing constitutional security of judicial review, given that any statutory right would sit alongside, and would not eclipse, the courts’ existing powers.
Where, then, does this leave us? A blandly expressed right to good administration in a bill of rights would be unlikely to do much damage, and its omission from a catalogue of rights might create a misleading impression as to its fundamental importance. But any attempt to lay down the principles of good administration in detail, or to define with precision the reach of the right, might well add needless layers of complexity and uncertainty while making little by way of a positive contribution.