Legal rights and interests are protected in myriad ways and not always in a substantive sense or through entrenched constitutional provisions designed to prescribe or limit power. Procedural safeguards that regulate the exercise of power have historically played an important role in protecting rights to life, liberty and property. As Felix Frankfurter of the United States Supreme Court stated, ‘[t]he history of liberty has largely been the history of the observance of procedural safeguards’.1 And, as Jackson J noted in Shaughnessy v United States,2 ‘[s]evere substantive laws can be endured if they are fairly and impartially applied’.
Still, the treatment of procedural safeguards throughout history has also reflected profound differences between the common law and civil law worlds. While common law jurisdictions attached great importance to the guarantee of liberty through appropriate procedures, civil law jurisdictions gave priority to the detailed identification and declaration of rights as substantive limits on power. Less thought was given in civil law systems to ensuring these rights procedurally. Nowadays, constitutional orders widely recognise the necessity of procedures for preserving the rights and freedoms of citizens and for preventing the abuse of power by governmental institutions. This trend has also been influenced by the increasing recognition, since 1945, of procedural rights in international human rights law.
The concept of procedural fairness—also frequently referred to as natural justice or due process—is historically rooted in the English common law system; specifically, in the context of judicial review of administrative (or executive) action, and, more generally, from the principles of ‘natural justice’ that apply to the exercise of judicial and quasi-judicial power. ‘Due process’ is more commonly used in the United States, where a due process clause is contained in the Fifth Amendment to the US Constitution, although the phrase was originally used in a 1354 iteration of the Magna Carta. In the twentieth century, procedural protections took root in civil law jurisdictions, where many developed what is commonly called the ‘rights of defence’.
The proliferation of international and regional human rights conventions since World War II has witnessed an increased focus on the express protection of individual rights through procedural guarantees. These instruments blend the English approach of protecting the right of an individual to be heard before an impartial authority, with the US and European preference towards the inclusion of express statements of rights in binding instruments. Developments in public international law since 1945 have played a significant instrumental role in the spread of procedural guarantees in domestic constitutional and legal settings throughout the world, but those developments have not resulted in their harmonious adoption and there exist many variations between jurisdictions in the nature and scope to which those principles are both legally and constitutionally protected.
In English common law, the rules of procedural fairness are viewed as manifestations of the rule of law (see Jowell, 12)—a doctrine considered fundamental in the unwritten British constitutional system. The Diceyan conception of the rule of law embodied three elements: first, that individuals should not be subject to the power of officials wielding wide, discretionary powers, or be punished except for breaches of the law established before a court; secondly, that all persons should be subjected equally to one law, and; thirdly, that the constitutional law should be the result of judicial decisions determining the rights of private persons in particular cases.3 Despite being widely criticised, the Diceyan conception of the rule of law remains influential, as do the values underpinning it; legality, certainty, consistency, accountability, efficiency, due process, and access to justice (see Jowell, 7–13).
Procedural fairness requirements were first reflected in Clause 39 of the Magna Carta, adopted in 1215:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
Subsequent versions of the Magna Carta—in particular, a statute of Edward III in 1354 titled ‘Liberty of the Subject’—included the phrase ‘due process of law’. This terminology, repeated in the Fifth Amendment to the US Constitution, tends to imply a substantive distinction from the mere right to be treated ‘according to law’. Under the British Constitution, the protection of procedural fairness is left to the common law, operating primarily through principles of statutory construction and ultimately remaining subject to the doctrine of parliamentary supremacy (and thus to statutory override). The principles of procedural fairness do not act as a direct limit on legislative power but ‘as a basis for the evaluation of all laws’ (Jowell, 17).
At common law, procedural fairness is frequently used to describe a set of principles that govern the exercise of executive power, whereas natural justice has traditionally been used in reference to procedural requirements attached to the exercise of power by courts and tribunals. Both terms are now used interchangeably. Natural justice contains two basic rules, described by Wade and Forsyth as follows: ‘a man may not be a judge in his own cause’ (the rule against bias) and ‘a man’s defence must always be fairly heard’ (the fair-hearing rule) (Wade & Forsyth, 440). Both the fair-hearing rule and the rule against bias are designed to ensure that the rights and freedoms of individuals are interfered with only in accordance with the law. In the United Kingdom, the application of procedural fairness requirements to administrative decision-making developed as a component of the ultra vires doctrine, based on an implication that, unless Parliament otherwise provides, Parliament does not authorise the exercise of powers in breach of the principles of natural justice.4 A failure to comply with the principles of natural justice will therefore render a decision void or at least susceptible to being set aside by a court.
In common law systems, procedural rights have historically been protected through judicial review by independent courts equipped with jurisdiction to award various remedies; in civil law systems, review occurs in specialised administrative courts. Many constitutions throughout the world, including Australia’s,5 entrench various prerogative writs and remedies designed to safeguard procedural rights. Habeas corpus, for example, is entrenched in the constitutions of Paraguay,6 Costa Rica7 and Kenya.8 Additional prerogative writs have subsequently been adopted in various jurisdictions, including the writ of amparo (a remedy available to a person whose life, liberty and security is unlawfully violated or threatened with violation by a public official)9 and the writ of habeas data (a remedy that enables individuals to protect their image, privacy and reputation through the release and correction of information held about them by public officials).10
The natural law origins of the principles of natural justice were, at one period, considered to restrain the legislature, enabling the courts to hold laws invalid where they made a man judge in his own cause or were against ‘common right or reason’.11 The doctrine of parliamentary supremacy ultimately prevailed and the rules of natural justice are now approached as common law principles that govern the interpretation and application of valid statutes. In this sense, the principles of natural justice are susceptible to statutory erosion or modification. The likelihood of such statutory override is less pronounced following the incorporation into English law of the European Convention on Human Rights (ECHR), through the passage of the Human Rights Act 1998 (UK); the common law system is now overlaid with the rules and principles contained in the ECHR.
The common law principles of natural justice—now generally referred to as procedural fairness—have been extremely influential in other common law jurisdictions. However, constitutional differences have resulted in important differences in the protection of fundamental process rights. These differences extend to the specific terminology used, the content of fundamental process requirements, the extent to which protection is given to substantive— in addition to procedural—rules, and the degree to which procedural requirements are enforceable by the courts through the process of judicial review.
By entrenching both judicial review and due process in a written document, the US Constitution protects procedural fairness requirements in a more comprehensive fashion than the English common law. The due process clause in the US Constitution is contained in the Fifth Amendment, which provides that, ‘[n]o person shall be … deprived of life, liberty, or property, without due process of law’.12 This amendment applies to federal action; the Fourteenth Amendment extends the due process requirement to the states. The due process clause contained in the US Constitution extends to legislative as well as executive and judicial action. It has also been interpreted by the Supreme Court to protect substantive as well as procedural rights, requiring that governments appropriately justify interferences with an individual’s fundamental rights.13 The rules of procedural fairness identified as constitutional requirements of the Fifth Amendment are not susceptible to complete statutory override, as in the United Kingdom.
Influenced by the interpretation of Lord Coke, the phrases ‘law of the land’ and ‘due process of law’ were often used interchangeably, were both reflected in early constitutions of the states within the US and were treated as equivalent terms by the Supreme Court.14 In early US case law, ‘law of the land’ and ‘due process’ clauses in state constitutions were interpreted as not having the effect of restraining the power of the legislature.15 Consequently, any law could be the ‘law of the land’ and any process could satisfy the requirement of ‘due process of law’. However, that approach did not ultimately prevail, given the absence of a doctrine of parliamentary supremacy under the US Constitution and the acceptance that, in the US, sovereignty resides with the people.16 This approach was also supported by the availability of judicial review under the US Constitution. As Justice Curtis stated in Murray v Hoboken, in reference to the Fifth Amendment,
[t]he article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law’, by its mere will.17
Arguably, ‘due process of law’ points to the law’s substantive content and implies procedures that are more likely to induce fair or just outcomes. Indeed, the inclusion of a due process clause in the US Constitution, coupled with the power of the Supreme Court to review the constitutional validity of legislation, have combined in the US constitutional context to effect very different methods of protection (when compared with the United Kingdom) for procedural fairness in the exercise of power.
In other common law jurisdictions, such as Australia and Canada, the constitutional protection of procedural fairness or due process requirements reflects elements of both the English and American models. The US Constitution has also been influential in the design of new and amended national constitutions, including its combined features of entrenched judicial review and the due process clause as measures for protecting the individual rights and the rule of law through procedural safeguards. The 1988 Constitution of Brazil, for example, entrenches judicial review and provides that ‘no one shall be deprived of freedom or of his assets without the due process of law’.18 Since 1945, international and regional human rights instruments have provided an additional framework against which nations have modelled new, and amended existing, constitutions. For nations such as the UK, those instruments overlay the existing constitutional system and have the capacity to stimulate change within it (see Wade & Forsyth, 445–8; Lester & Beattie).
For many lawyers, the treatment of procedural issues highlights the differences between common and civil law jurisdictions. Yet, this may not constitute an entirely faithful representation of the reality, especially with regard to administrative law. Whilst the droit administratif had been roundly criticised by Dicey in the ‘Law of the Constitution’,19 French administrative law displayed a healthy interest in procedural matters from an early period. In 1913, the Conseil d’État recognised an automatic right to a hearing before any judicial body, in Tery.20 This decision was particularly important as the administration had set up a great many judicial panels for disciplinary matters and the regulation of specific professions (e.g. the medical profession). The landmark case stipulated, unsurprisingly, that applicants before such panels had a right to be heard at first instance and on appeal, even in the absence of any legislative requirement to do so. Soon, other cases indicated that such procedural rights also extended to the administration for certain decisions. In 1944, the Conseil d’État asserted in Trompier-Gravier21 the existence of rights of defence (in this case, a right to a hearing) in relation to administrative decisions that imposed a sanction or that affected seriously and detrimentally an individual’s position.
Although approached narrowly at first, French courts soon widened this obligation: today, all that is needed is a decision affecting someone adversely, considered on the basis of the individual’s behaviour or actions. In fact, this right is even imposed when someone is seeking a licence or a benefit for the first time.22 Furthermore, the rights of defence have received constitutional recognition by the Conseil constitutionnel.23 In a decision of 1987,24 the Conseil constitutionnel specified that the requirements of the rights of defence made it necessary for the decision of the competition council to be reviewed by the administrative courts. It explained that the impact and import of the decisions of the competition council were such that courts involved in reviewing those decisions needed to have powers of interim relief. As the legislation aimed to bestow this review on the private law courts without introducing any interim relief provision, it was held to be unconstitutional.
The protection of the rights of defence and of process rights in general spread to other civil law countries, which commonly recognise and protect a large number of process rights through case law,25 legislation26 and constitutional provisions.27
Since World War II, procedural requirements have increasingly been reflected in international, regional and national human rights instruments and, while the formal declaration of fundamental rights and freedoms is not unique in a historical sense, their development and adoption by nations has had a significant impact on domestic legal systems and the constitutional frameworks that govern them. Perhaps one of the most significant implications of the emergence of international and regional frameworks for human rights protection has been the expansion of the concept of procedural fairness to embody specific process rights held by individuals. That shift involves a departure from the common law origins of natural justice and procedural fairness, with its emphasis upon the duties of those exercising power (courts, tribunals, administrative decision-makers) to afford a fair and impartial hearing. It also reflects a departure from the views of Dicey and Bentham on the value of adopting formal statements of the rights and freedoms of individuals.
The development of international legal principles around individual rights, outside international humanitarian law, began with the adoption of the Universal Declaration of Human Rights in 1948. Article 10 of the UDHR provides as follows:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
The UDHR, though adopted through resolution of the United Nations General Assembly as a non-binding statement of rights,28 has since acquired a more authoritative status in customary international law and through its use as a model for virtually all subsequent conventions on human rights.29 Article 6(1) of the European Convention on Human Rights provides that ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. The International Covenant on Civil and Political Rights (ICCPR) is also replete with procedural guarantees, although articles 9 and 14 are most frequently associated with procedural fairness or due process. Article 2 of the ICCPR, for example, requires member states to ensure that individuals may obtain effective remedies for breaches of their rights before a competent judicial, administrative or legislative authority, and states must also develop the possibility of judicial remedies. The procedural guarantees contained in the major conventions are also seen in human rights instruments dealing with specific subjects, such as children, race, women and disability.30
The impact of international instruments on the development of modern constitutions has been significant, and many written constitutions refer expressly to them. The 1993 Constitution of Cambodia, for example, refers directly to the UDHR, the United Nations Charter and other international conventions in Article 31, before setting out a number of procedural guarantees, including the right to file complaints. Other international and regional human rights frameworks providing for the review by supra-national courts or committees have also had considerable impact on domestic legal systems. While some constitutional settings (such as Australia’s, where a rigid written document was adopted well before the development of modern international human rights law) have been more resistant to the influences of international human rights law, the general trend worldwide has been to embrace or adapt the provisions of international law in new and revised constitutions.
Procedural fairness was not originally conceptualised as a constitutional principle; it was simply a principle of judicial review. Constitutional protection of process rights is strongly influenced by a country’s historical origins, legal evolution and political culture, and constitutions vary in their express guarantee of procedural fairness. Most constitutions protect some aspects of procedural fairness, the most common being fairness in criminal procedure.31
Judicial adjudication or review is often used as a model when stipulating the hearing rights to be granted prior to an individual determination. Consequently, the principles of judicial independence and impartiality often play a role in the design of the procedure itself. Hearing rights require that the decision-maker explain the arguments that support his/her decision and thereby promote (legal) accountability. Finally, the principle of human dignity plays a significant part in procedural fairness. It is common for process rights to be justified by courts or legislation by reference to a dignitarian rationale; a hearing may not improve the content of the decision (instrumental/utilitarian rationale) but it provides a forum for individuals to present their version of events.32
The rule of law is also widely held to justify the requirement of procedural fairness; rules must be clear, accessible to citizens and adopted by transparent processes. The organisation of a hearing ensures that decision-making respects all these requirements. Further, by protecting legal certainty, the rule of law justifies the existence of the principle of procedural legitimate expectations, namely that continual past practices or clear representations by a civil servant create an entitlement to process rights.
Procedural fairness is also increasingly seen as a way to foster participation in rule-making. The demand of citizens for a larger role in the adoption of primary and secondary legislation has led to a shift; citizens would like to be consulted systematically prior to adoption. Process rights represent a step towards a more participative democracy. The effectiveness of any participation rights relies heavily on the recognition and respect of transparency, another constitutional principle.
Arguably, change or reform of any of these principles affects the content of procedural fairness and the degree to which it is constitutionally protected. Indeed, in some constitutional orders, procedural fairness is in flux because the meaning of these constitutional principles is changing. The case law of the European Court of Human Rights has transformed the principle of judicial independence and impartiality across a number of jurisdictions, for example, effectively requiring that the United Kingdom transform the organisation of its judiciary completely.33
While other constitutional rights such as freedom of expression have a core meaning that drives their content, procedural fairness is an idea pervading the whole of the decision-making process. A clear determination of the content is complicated by a perceptible transformation of procedural fairness to process rights. Still, it is possible to identify the range of content for procedural fairness across various constitutional orders.
A comparison of the early evolution of the procedural fairness principle in France and in the United Kingdom shows that it arose principally from the need to control the legality (and fairness) of administrative action. Consequently, the content of this principle was strongly influenced by the eventuality of future challenges to the exercise of power in courts. Judicial procedure and adjudication served as a model to determine the exact content of the procedural protection owed to citizens in this context. In both civil and common law jurisdictions, procedural fairness began with the demand for hearing rights when a somewhat detrimental decision was being made by a public body. In France, the Conseil d’État declared the existence of a general principle of law34—the rights of defence—and annulled the decision of the administration to withdraw a licence for the exploitation of a newspaper’s street stand, which had been made without prior hearing of the licence holder.35 Similarly, in the United Kingdom, the House of Lords decided in Ridge v Baldwin that a chief constable should be given notice and heard before his dismissal. In fact, the right of an individual to make oral or written36 submissions prior to the making of a possibly detrimental determination against them by a public body is widely recognised. Nowadays, many countries have chosen to codify their administrative procedure, defining the circumstances triggering these rights.37 Some constitutions guarantee the right to a hearing when the administration is contemplating a detrimental determination.38
To be fully effective, the right to hearing needs to be accompanied by other procedural safeguards. A hearing will be pointless without notice of the decision and of the reasons for it. Information is therefore crucial and procedural fairness generally carries with it a duty to provide reasons for the decision. This is quite important as not all jurisdictions have embedded a general duty to give reasons in their legal system.39 In the European Union and some other European jurisdictions (e.g. France and Luxembourg) this even extends to a right of access to the file held by the public body.40 A number of other procedural issues may affect the effectiveness of a hearing, including whether an individual has access to legal representation and sufficient preparation time. The organisation of hearing rights needs the determination of a wide range of procedural issues. If these are not clarified in a detailed administrative code or in the relevant legislation, courts are left to do so, often on a case-by-case basis. While in some circumstances, a notice of the decision with the (factual and legal) reasons and the possibility to submit written representation will be enough, for others, a full oral hearing by an independent panel and access to legal representation will be necessary. In practice, the courts often determine the content of the process rights by reference to the legal and factual context in individual cases: the stronger the right denied and the more detrimental the administrative decision, the wider the process rights are likely to be.41
Commentators in common law jurisdictions also ascribe the rule against bias to this search for procedural fairness; the personal or financial interest of the decision-maker is seen to compromise (rightly) the fairness of the procedure. Traditionally, civil jurisdictions did not really conceptualise such cases in this manner; if they involved a judicial body, the independence of the judiciary was said to be breached. However, if this bias came to light in administrative decision-making, a principle of impartiality may be breached.42 The Italian constitution recognises, in article 97, a principle of impartiality in such circumstances.43 Interestingly, civil jurisdiction signatories to the European Convention on Human Rights (ECHR) have been affected by the requirement for a fair and impartial tribunal contained in article 6 § 1. While many of the changes imposed on European jurisdictions aimed to strengthen the fairness of the administration of justice, the obligation of a fair and public hearing by an independent and impartial tribunal is applied more widely to a person’s ‘determination of civil rights and obligations’. The withdrawal of a licence,44 the placement of children into care45 and the sanctions of a regulatory agency46 must all comply with the requirement of a fair and impartial tribunal. In some cases, this has required that the procedures leading to the adoption of some administrative determinations be transformed to comply with the demands of the European Court of Human Rights.47 It is also significant that a principle of impartiality was finally recognised by the French Conseil d’État in a decision of 1999.48
Finally, the content of procedural fairness takes on a completely different complexion when one moves from individual determinations to legislative or general measures. Courts may have felt legitimate in imposing procedural safeguards for the adoption of individual decisions, but they have been much less active with regard to legislative or general measures. When not backed by the constitution or legislation,49 courts have found it difficult to grant process rights to concerned individuals or interested associations in the context of rule-making. In fact, few constitutional orders grant clear process rights prior to the adoption of legislative or general measures, though they exist in the Spanish Constitution50 and may soon become a reality in the European Union.51 However, as the demand for participation in rule-making has risen markedly in recent decades, many countries have organised such participation when administrative procedure was codified in legislation. Even though process rights of the type enshrined in the notice and comment procedure of section 553 of the US Administrative Procedure Act may not be available everywhere, legislation on planning and the environment (to name but two) often include participatory rights in the decision-making process. Also, in common law jurisdictions, a duty to consult ‘interested’ parties before adopting a general measure may result from legitimate expectations; prior practice52 or a representation by a public body53 may constitute a procedural legitimate expectation and bestow some process rights to interested parties.
One must note, however, that the process rights involved in rule-making are rooted largely in different constitutional assumptions than those underlying the right to a hearing or the rule against bias. With general or legislative measures, citizens want to participate in the determination of the content of the measure that holds an interest for them. The judicial process is no longer the model to follow; in rule-making, process rights are strongly influenced by an ideal of participative democracy.54 In addition, these participatory rights can only be effective if concomitant constitutional principles are recognised too. Without a commitment to transparency, the involvement of citizens and their participation in rule-making cannot have much reality: concerned citizens and interested associations need to be fully informed to participate effectively in consultation exercises.55 Increasingly, constitutional orders recognise a principle of transparency and legislation on freedom of information and access to documents is common. Not only do these foster a more effective and direct involvement of citizens in policy-making, but in turn, they continue to transform the constitutional culture and the expectations of the polity.
The duty to afford procedural fairness, or due process, is enforced by courts and tribunals, but a court’s (or tribunal’s) role in this respect will depend on the constitutional setting and the extent to which a constitution provides for judicial review. The level of protection given to the rules of procedural fairness will also depend on the extent to which process rights are legally and constitutionally protected, and whether such rights are seen to limit the exercise of legislative power or not. The constitutional framework is therefore determinative of the extent to which procedural fairness, or due process, is both required and protected.
In the United Kingdom, where for a large part the courts lack the power to invalidate Acts of Parliament, the duty to afford procedural fairness is generally required of administrative decision-makers or those exercising public power and is enforced by the courts in the judicial review of administrative action. This common law tradition has now been supplemented by the ECHR, through the operation of the Human Rights Act 1998 (UK). The incorporation of the European Convention has imposed on courts a duty to interpret legislation in line with the Convention and granted them the power to issue a declaration of incompatibility; while this declaration is not legally binding, it highlights the existence of a breach. Furthermore, the Human Rights Act has made the breach of a convention right a new head of judicial review. As article 6 § 1 of the convention imposes the requirement of a fair and impartial tribunal, it is reasonable to argue that procedural fairness is granted quasi-constitutional protection in the United Kingdom.
In Australia, where a written Constitution includes elements of both the English and US Constitutions, judicial review is entrenched, but procedural fairness rights (other than a right to trial by jury for indictable offences56) are absent from the constitutional text and must be derived from either the common law or statute. Only the separation of judicial power under Chapter III of the Constitution ensures minimum procedural guarantees for judicial proceedings at both the federal and state levels.57 However, parliament is free to remove procedural fairness entirely in administrative proceedings. In this respect, while the High Court of Australia has held that the Constitution entrenches judicial review in respect of decisions affected by jurisdictional error,58 the Court has yet to find that the grounds of review, including procedural fairness, are also entrenched and thus beyond parliament’s power to remove as requirements of administrative decision-making.
In Canada, where the Charter of Rights and Freedoms has been constitutionally entrenched since 1982, various procedural rights guaranteed under Articles 7–10 supplement the common law’s procedural fairness rules.59 These legal rights—which extend to the legislature also— include the right to habeas corpus, the right to prompt reasons and to retain counsel following arrest or detention. Under Article 24 of the Charter, individuals can apply to a court of competent jurisdiction for remedies where a right or freedom has been denied. However, in accordance with Article 33, the Parliament may declare that an Act of Parliament is to apply, notwithstanding that it conflicts with a right or freedom protected under the Charter. The judicial review capacity of the Canadian Supreme Court has therefore expanded considerably since 1982, as has the constitutional protection afforded procedural safeguards.
In contrast, the US Constitution enables the Supreme Court to invalidate laws at odds with the due process clause, thereby conferring constitutional protection to minimum procedural (and some substantive) requirements. Similarly, many constitutions (especially on the European continent) follow the Kelsenian model of constitutional review by a specialised court. Constitutional courts review the constitutionality of laws and strike them down if they conflict with constitutional provisions or principles. There, what matters is the extent of the protection afforded to procedural fairness by the constitution.
While most constitutions protect some aspects of procedural fairness, few provide what could be labelled as complete protection. The majority of constitutions are strict on fair trial requirements for criminal litigation but often silent on administrative procedures: for instance, the Japanese Constitution contains many procedural guarantees for criminal trial60 and, similarly, the German Constitution proclaims a number of judicial rights61; neither constitution is concerned with the fairness of administrative procedures. At the other end of the spectrum, the Spanish Constitution contains detailed guarantees of procedural fairness before the administration: article 10562 specifies that the right to consultation, the right to a hearing and the right of access to documents must all be implemented by law. Finally, constitutional documents may be (and are often) supplemented by the activism of courts; as explained above, although the French Constitution affords procedural fairness in criminal proceedings only, the French Conseil constitutionnel recognised an additional constitutional right of defence. Similarly, the Court of Justice recognised a right of defence in the European Union long before its incorporation in article 41 of the Charter of Fundamental Rights.
Procedural fairness can be protected efficiently even in the absence of constitutional recognition. Early on, the respect of procedural fairness was often imposed on the administration by courts, but nowadays these early efforts are supplemented increasingly by legislation. For instance, the Netherlands may not have a system of constitutional review but administrative procedure and process rights were codified by legislation in the General Administrative Law Act.63 In fact, it is perfectly possible to guarantee through legislation that appropriate mechanisms are in place for individuals to make representations before an adverse decision or to ensure that representative associations and interested persons be consulted before the adoption of a legislative or general measure. Indeed, many countries across the world, such as the USA, Germany, the Netherlands, Japan and Spain (to cite but few) have codified their administrative procedure. Although the content of these codifications varies, they all enshrine key process rights: for instance, the Japanese Administrative Procedure Act of 1993 established a duty to give reasons, a right to a hearing, and a comment and notice procedure in rule-making. Even those countries still reluctant to adopt such codification have often needed to enshrine some process rights in legislation to ensure their effectiveness: in France, the right to be heard is now conferred upon citizens by legislation.64 Still, a full codification has the advantage that other relevant principles such as transparency, access to information and duty to give reasons are addressed at the same time.
Finally, one should not forget that soft law may play an important role in establishing process rights: for instance, although a general right of participation in rule-making is yet to be codified in the European Union, the Commission has chosen to consult the wider public on a number of key reforms since 2002.65 This has allowed the acclimatisation of these rights ahead of a formal introduction by Treaty amendment.66
Although the origins of procedural fairness lie historically in English common law, its evolution over time has involved an increasing trend towards the express articulation of process rights in constitutional documents and in legislation. So much so that for many constitutional orders, procedural fairness is guaranteed by a complex and layered system of protection: constitutional provisions, legislation, case law and even treaty obligations all combine to guarantee process rights. However, a warning may need to be sounded concerning this evolution: in some constitutional orders, this layered approach has led to the various procedural guarantees competing and even clashing. Indeed, many constitutional orders in the European Union may be close to experiencing a process-right overload: there, the growing national guarantees are supplemented by the requirements of the European Convention on Human Rights and in some circumstances those of the Charter of Fundamental Rights. This has engendered some tensions and a degree of legal uncertainty that does not serve the protection of these rights well.
1 McNabb v United States, 318 US 332 (1943).
2 345 US 206 (1953) (Jackson J).
3 In reference to Dicey.
4 Fairmount Investments Ltd v Secretary of State for the Environment, 1263 (Lord Russell); Ridge v Baldwin, 80 (Lord Reid).
5 Australian Constitution, 1900, s 75(v).
6 Constitution of Paraguay, 1992, Article 135.
7 Constitution of Costa Rica, 1949, Article 48.
8 Constitution of Kenya, 2010, Article 25(d).
9 The writ of amparo is protected in many constitutions throughout the world, including the Constitution of Mexico, 1917, Articles 103 and 107 and the Philippines Constitution 1987, Article VII, s 5(5), Administrative Matter No. 07-9-12 SC, effective 24 October 2007.
10 The writ of habeas data is protected, in various forms, in constitutions including the 1988 Constitution of Brazil, Article 5, LXXII; the 1992 Constitution of Paraguay, Article 135; the Argentinian Constitution (following a 1994 amendment), Article 43; and the Philippines Constitution 1987, Article VII, s 5(5), Administrative Matter No. 08-1-16 SC, effective 2 February 2008.
11 Dr Bonham’s case (1610) 8 Co Rep 113b at 118a (Lord Coke CJ).
12 Section 1 of the Fourteenth Amendment extends due process of law to the American States.
13 See, for example, Griswold v Connecticut 381 US 479 (US); Roe v Wade 410 US 113 (US).
14 See Goldberg, 366, citing Justice Curtis in Murray v Hoboken.
15 See Dartmouth v Woodward 1 NH 111, 65 NH 473 (1817); State v ----, 2 NC (1 Hayw.) 50, 52 (1794).
16 See Taylor v Porter, 4 Hill at 144.
17 59 US (18 How.) 272, 276 (1855).
18 Article 5, LIV.
19 Dicey’s criticisms, harsh and ill-informed in the early editions, were more measured in the last (8th, 1915).
20 CE 20 June 1913, rec 736, concl Corneille. A secondary school teacher had been dismissed for disciplinary reasons. He challenged the decision before the appropriate disciplinary panel but lost. He appealed but was unable to attend the appeal hearing for medical reasons. The disciplinary panel confirmed the original judgment despite his justified absence. The Conseil d’État declared that the rights of defence had been breached and quashed the appeal.
21 CE Sect 5 May 1944, rec 133.
22 See CE 25 November 1994, Palem, rec 753.
23 The Conseil constitutionnel is the equivalent of a constitutional court in the French constitutional order.
24 See C cons n 86-224 DC, competition council.
25 See il principio del contraddittorio in Italian public law.
26 See the Dutch General Administrative Law Act of 4 June 1992.
27 See article 105 (c) of the Spanish Constitution: ‘The law determines … the procedures to be followed in decision-making; these guarantee the right to a hearing to interested parties when appropriate.’
28 GA Res 217, UN GAOR 3d Sess, UN Doc. A/810 (1948).
29 See generally Hannum.
30 The Convention on the Rights of the Child, for example, requires that a child not be removed from his/her parents unless such decision is authorised by a competent authority subject to judicial review.
31 See articles 33 to 40 of the Japanese Constitution or articles 103 and 104 of the German Basic Law.
32 This dignitarian approach is found in both common law and civil law jurisdictions.
33 See McGonnell v United Kingdom (2000) 30 EHRR 289. The Constitutional Reform Act 2005 limited the powers of the Lord Chancellor, created a supreme court and transformed the system of judicial appointments.
34 Although the result of judicial activism, these general principles of law create obligations for public bodies. Their respect is strictly enforced by administrative courts.
35 See CE 5 May 1944 Trompier-Gravier, rec 133. The licence was terminated for fault (an allegation that she had attempted to blackmail her manager).
36 In France, such representations to public bodies can be made in writing. However, citizens can opt for an oral hearing if they wish. Interestingly, few avail themselves of this possibility.
37 See e.g. section 28 of the German Verwaltungsverfahrengesetz of 1976.
38 See Article 20 of the Greek Constitution: ‘The right of a person to a prior hearing also applies in any administrative action or measure adopted at the expense of his rights or interests.’
39 No such duty exists in France or in the United Kingdom. However, the Charter of Fundamental Rights of the European Union has included a duty to give reasons in article 41(2).
40 The file contains all the information that the administrative body has collated prior to the decision being made. In some complex decisions it can be voluminous indeed.
41 For instance, the UK courts are more likely to grant full hearings rights before an impartial tribunal for the renewal of a licence than for an initial application; see McInnes v Onslow-Fane [1978] 1 WLR 1520. The French courts will grant hearing rights to any decision that is a sanction (e.g. a dismissal, see CE 26 October 1945 Aramu, rec 213) or the withdrawal/denial of a benefit (e.g. the withdrawal of the state permit to work as a docker, see CE 13 July 1967 Allegretto rec 315). These considerations apply in the European Union as well, see case C-49/88 Al-jubail Fertilizer v Council [1991] ECR I-3187 and see article 41 § 2 of the Charter of fundamental rights of the European Union, OJ 2000 C364/1.
42 A regard to personal or financial interests of the decision-maker when making a decision can constitute a misuse of power, a ground that is close to the one of misfeasance in public office in English law.
43 See article 97: Public offices are organised according to the provisions of law, so as to ensure the efficiency and impartiality of the administration.
44 See Pudas v Sweden (1988) 10 EHRR 380.
45 See Olsson v Sweden (no. 1) (1988) 11 EHRR 259 PC.
46 See H v Belgium (1988) 10 EHRR 339.
47 See the reform in France of the regulation of the financial markets and of the authority for financial markets.
48 See CE Ass 3 December 1999, rec 339.
49 However, many countries have codified administrative procedures and enshrined process rights in rule-making. The US Administrative Procedure Act 1946 describes the various processes of rule-making and stipulates the rights attached to them, such as the notice and comment procedure in section 553.
50 See article 105 (a): ‘The law determines: (…) (a) the hearing of citizens, directly, or through the organisations and associations recognised by the law in the process of drawing up the administrative decision which affect them.’
51 However, article 11 of the Lisbon Treaty may well change this. Included in the part on democratic principles, this provision creates an obligation on the institutions of the European Union to consult citizens and representative associations in all areas of decision-making.
52 See CCSU v Minister for the Civil Service [1985] AC 374.
53 See R (on the application of Greenpeace Ltd) v Sec. of State for Trade and Industry [2007] EWHC Admin. 311.
54 The South African constitutional court encountered these issues in the Doctors for Life litigation. The NGO ‘Doctors for Life International’ argued that key healthcare legislations had been adopted without proper public involvement and that the National Council of Provinces (NCOP) had failed in its duty to facilitate public involvement in the passing of the bills. The court decided that the failure of the NCOP to hold public hearings prior to the adoption of the legislation had breached the duty to facilitate public involvement for two of the legislations. The legislation was invalid as a result, see Doctors for Life International v the Speaker of the National Assembly and Others 2006 (12) BCLR 1399 (CC) (S. Afr.). Interestingly, Ngcobo J recognises in the duty to facilitate public involvement an expression of participatory democracy. He rightly insists that such instances of participative democracy do not compete with but complement the South African representative democracy.
55 The notification and consultation of interested parties is the main process right in the context of rule-making.
56 Conferred under s 80 of the Australian Constitution.
57 See, e.g. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
58 Plaintiff S157 v Commonwealth (2003) 211 CLR 476 (in relation to federal decisions); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (in relation to State decisions).
59 For the common law requirements of procedural fairness, see Baker v Canada (Ministry of Citizenship and Immigration) (1999) 2 SCR 817.
60 See articles 33 to 40 of the Japanese Constitution.
61 These are: the right of access to courts (art 19(4)), the right to the lawful judge (art 101), the right to a court hearing (art 103(1)), the principle of clarity of criminal provisions and prohibition of retroactive criminal offence (art 103(2)) and the prohibition of double jeopardy (art 103(3)).
62 See Article 105 of the Spanish Constitution.
63 The GALA was adopted in the Netherlands in 1992. This codification was required by article 107 of the Dutch Constitution. Prior to the introduction of the GALA there was a great deal of uncertainty and confusion with regard to administrative procedures and process rights.
64 See the law of 12 April 2000 on the rights of citizens in their relations with their administrations.
65 See the 2002 Communication on Consultation, ‘Towards a reinforced culture of consultation and dialogue—General principles and minimum standards for consultation of interested parties by the commission’, COM (2002) 704 final.
66 Arguably, this gap has been addressed by article 11 of the Lisbon Treaty.
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