Sources of process rights | -
Lisbon Treaty (TEU + TFEU) Duty to give reasons: art 296 Publication Access to documents -
EU legislation – sector-specific procedural codes for particular area -
Eg competition law; State aid law (States supporting domestic industries) Big business – large commercial interests at stake and so procedural rules imposed -
Caselaw -
“General principles” of law fashioned by Courts read into treaty Similar to reasoning of common law courts -
Eg Right to hearing/right to defence – elevated to fundamental right in Al-Jubail -
Set of model rules for procedure currently being put together by group of academics No formal status but are being considered by EU Parliament Referred to by EU Ombudsman | -
Common law from 17th century onwards Modified ultra vires v common law theories -
Limited statute Horizontal – dealing with particular process right across different administrative bodies – eg duties to give reasons in Tribunals Act 2007 (setting up first-instance and upper tribunals) -
Vertical – code of procedure for particular type of decision-making In primary or secondary legislation First-instance tribunals are subject-matter specific (immigration, welfare, etc) Given greater coherence post-2007 -
ECHR art 6 as implemented by HRA (enshrining right to fair trial, incl that decision-making be undertaken by independent & impartial tribunal) That requirement already existing at common law but has become more developed EU General Principles of law binding when implementing EU law – where domestic body implementing |
| Rationale | | Similar instrumental & non-instrumental rationales to EU Judges more openly reflect on underlying rationale – even if not in terms -
Generally don’t err towards pure instrumental law & economics reasoning – if hearing wouldn’t have make a difference to outcome, don’t give hearing Even from instrumental perspective – impossible to know |
Trigger/applicability | Depends on the source. -
Treaty treaty article will provide trigger Eg duty to give reasons – applies to every form of action taken by Community: incl primary, secondary legislation (eg EMs) & individual decisions Duty to publish – applicable to every Act Access to documents – less extensive -
Legislation triggered by subject matter involved Eg Procedural code for competition applies in competition cases -
Courts often add to process rights where legislative process insufficient Ie “general principles of law” not excluded by omission in legislation—because sits above it in hierarchy of norms -
Caselaw (“general principles of law”) adjudication process rights – -
Test unclear— Adverse impact (English language version); or additionally That measure be directed at the plaintiff (French language version) -
Broader test favoured Tendency towards adverse impact test in caselaw “directed at plaintiff” given a broad meaning | Must show some right, interest or legitimate expectation justifying some process rights General approach is for liberal interpretation of rights, interests falling short of rights, and of legitimate expectation -
Legitimate expectation – eg Where clear & unequivocal representation without which interest would not warrant protection – representation provides foundation: AG of HK v Ng Yuen Shiu (alien entered territory illegally – government announced illegal immigrants would be interviewed protected but would not have been without unequivocal representation) |
Content of Process Rights | -
Legislation setting out code set out in the Code Can be supplemented by general principles -
Treaty / general principles of law determined by the Court -
Rules vary according to subject-matter Eg duty to give reasons applies differentially depending on nature of exercise of power – legislation v individual administrative action -
Implicit (not explicit) balancing exercise Similar to explicit balancing exercise to determine US Constitutional due process rights to be accorded: Matthews v Eldridge (1984, US) Importance of interest infringed Likely value of additional process right claimed, in light of process rights actually given Cost to administration (not limited to financial cost) -
Balancing typically conducted in a more micro way Eg right to access to file – where file enormous will take into account, without acknowledging that having regard to generally applicable consideration of cost -
Proposal in EU for closed material proceedings without a special advocate – Court to take more active inquisitorial role Sounds tenuous – but a lot of judges coming from continental legal systems where accustomed to inquisitorial adjudication; Court has favourable history of granting process rights | -
Appears to reflect balancing exercise in Matthews v Elridge (US): Importance of interest infringed Likely value of additional process right claimed in reducing risk of error, in light of process rights actually given Cost to administration (not limited to financial cost) No seminal case that sets out that balancing calculus with such precision -
Qualification to balancing method: -
Core rights cannot be removed by ‘balancing’: Lord Denning – if the right to be heard is to be worth anything, it must carry a right to know the case made against an accused AF (2010) HL (control orders on basis that reasonable grounds to suspect terrorist activity, involvement, etc – judge relied on undisclosed evidence read down Prevention of Terrorism Act to be compatible with ECHR art 6 – core right to be given sufficient information about allegations to give effective instructions – not necessarily detail or sources) BUT Tariq (2011) (provision of gist not required in security vetting) – lesser consequences so lesser rights – not a ‘core right’ where liberty not at stake) Extent of due process has come under strain as a result of post-9/11 security concerns |
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Link between process rights & substantive review – Process rights reinforce substantive review Duty to give reasons – facilitates proportionality / rationality review by making reasons for decision transparent “Duty of diligent examination” – duty on administration on the cusp of procedural / substantive review -
Proximate connection between fact-finding & substantive review – substantive review may turn on evidence as well as reasoning |
Rule-making | -
3 kinds of administrative rule-making Delegated acts – art 290 TFEU -
Implementing acts – art 291 TFEU Where uniform implementation required -
Guidelines & codes etc issued by Commission – not formally binding but often performing same functions Sometimes used as pragmatic tool because can’t get legislation through -
Constraints on making of delegated/administrative acts Delegated acts – parliament has veto Implementing acts – made subject to comitology committees staffed with member state technocrats -
Court has been proactive in developing process rights in adjudicative processes – but not as to rule-making Difficulty for those affected – once bad rule established process rights don’t assist in moderating its application P Atlanta AG v Commission [1999] ECR I-6983 (argument by analogy from right to due process in adjudicative processes – tried to extend to rule-making – seeking participation rights – trying to extend authority in Al Jubail [1991] ECR I-3187 no due process in rule-making – hearing/participation rights stem only from treaty or regulations made pursuant thereto – if none provided for, not supplemented by the courts) Commission has open discretion as to who to consult etc – Communication issued by Commission in 2002 reinforcing that matter Set of model rules provided by academics includes process rights in rule-making Cf. requirement imposed on member States to consult sufficiently widely | |
| Arguments -
True for most jurisdictions – cf USA 1911 – no constitutional right to due process in rule-making -
BUT those with power & money will exert influence whether there is a process in place or not – without process rights, system...
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