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This site will stop working soon … start following Public Law for Everyone

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As I explained in this post, I am no longer maintaining this blog. That’s because it has evolved into a new blog: Public Law for Everyone. The intended readership of the new blog is not limited to – but it certainly includes – those who may be thinking about studying Law at university. If you are in that position, then this post – linking to some videos I have recorded introducing the subject of Public Law – may be of particular interest. You will also find a resources section on Public Law for Everyone aimed at those who are thinking of studying Law. In addition, all of the content from Applying for Law has been copied across to the new blog.

The Applying for Law blog will become inactive (and I think inaccessible) shortly. If you are following it by email, you may therefore want to begin to follow Public Law for Everyone instead. You can sign up so that new posts are automatically emailed to you (via the “sign up for email updates” box on the right-hand side). In addition, or instead, you can follow me on Twitter.

Thanks for reading Applying for Law. I hope you will also find my new blog of interest.

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Public law for everyone: A new name (and home) for my blog

When I first started writing this blog last year, I was brand new to blogging (and to Twitter: which I joined simply in order to be able to tweet links to blog posts). Since then, the blog – along with my (still limited) grasp of this part of the online world – has evolved. In particular, I have come to realise that blogging and Twitter are increasingly important ways in which academics can engage with one another, with students, and with the wider world.

The original intention behind my blog was to open up the world of Law – and academic Law in particular – to people who are thinking of applying to study Law at university. I still think that that is important, and that will remain part of what I try to do via my blog. But I now also appreciate that blogging has a real role to play in relation to my academic work, including as a means by which to float ideas at an early stage and to offer commentary on current events.

So I am retiring “applying for law”. The new version of the blog is called “Public law for everyone”. The new name reflects the facts that the focus will be on my key area of academic interest – public law – and I that I will be writing on that topic in ways that will, I hope, be accessible and of interest a range of people. Some posts will continue to be aimed at the uninitiated, such as prospective Law students. Other posts will be more specialised or technical in nature, and as such will be aimed at other public lawyers and law students. As with the original incarnation of this blog, the new iteration will remain a work-in-progress, and will no doubt continue to evolve. 

The old URL (http://applyingforlaw.org) will continue to work for a while. The new address is http://publiclawforeveryone.wordpress.com

Sumption v Virgo debate: Should prospective lawyers study Law at university?

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Professor Graham Virgo (left); Lord Sumption (right)

This week, the Law Faculty at Cambridge University will host a debate between Lord Sumption, a Justice of the Supreme Court, and Graham Virgo, who is a Professor at the Faculty here. The debate was sparked by remarks made by Sumption last year. He is reported to have said:

I think that it is best not to read law as an undergraduate … The problem is that we have a generation of lawyers, and this applies to solicitors as well as barristers, who are coming into the profession with much less in the way of general culture than their predecessors. It is very unfortunate, for example, that many of them cannot speak or read a single language other than their own …

Most arguments which pretend to be about law are actually arguments about the correct analysis and categorisation of the facts. Once you’re understood them it’s usually obvious what the answer is. The difficulty then becomes to reason your way in a respectable way towards it. That’s why the study of something involving the analysis of evidence, like history or classics, or the study of a subject which comes close to pure logic, like mathematics, is at least as valuable a preparation for legal practice as the study of law. 

Appreciating how to fit legal principles to particular facts is a real skill. Understanding the social or business background to legal problems is essential. I’m not sure current law degrees train you for that, nor really are they designed to. This is not a criticism of the course. It’s simply a recognition of the fact that a command of reasoning skills, an ability to understand and use evidence, and broad literary culture are all tremendously valuable to any advocate. If you don’t have them you are going to find it difficult to practise. If you don’t know any law that is not a problem; you can find out.

It is unclear (from these reported remarks) why Sumption does not think that studying Law teaches “command of reasoning skills” or an “ability to understand and use evidence”. Nor is it clear why Sumption thinks that those who study Law lack an awareness of broader, cultural issues. Perhaps he assumes – mistakenly – that Law students spend their time locked away reading dusty tomes. The reality, of course, is that all university student specialise – and that with specialisation comes a focus on some things and not on others. But this rather misses one of the fundamental points of a university education: namely, that students do not spend their whole time engaging only with their own subject. One of the great strengths of studying at university is the opportunity to engage – through extra-curricular activities, public lectures, debates, and simply interacting with a cross-section of students – with a broad range of academic and other disciplines. To suppose, therefore, that Law students know nothing beyond the Law suggests a very narrow view of the nature and purpose of university study.

If accepted, then the argument set out above helps to establish that studying Law is not a bad thing, in that it does not preclude awareness of and engagement with the broader cultural matters that are of concern to Sumption. But is studying Law at university a positively good thing? Sumption appears to believe that ignorance of the Law (as opposed, say, to ignorance of “broad literary culture”) is unproblematic. Not knowing “any law”, he says, creates no difficulty – because “you can find it out”. The implicit suggestion is that Law is, in some sense, a straightforward matter that can simply be ascertained by consulting a book: and that students need not spend three years at university learning things that they could just as easily pick up as and when they need to.

Yet by adopting this stance, Sumption appears to fail to appreciate the nature of Law as an academic subject as it is taught in universities. One of the first things that Law students at Cambridge (and doubtless elsewhere) are told is that learning the Law is not simply about picking up and memorising factual information about the applicable rules. Rather, learning the Law – and learning to be and to think as a lawyer – is, in part, about appreciating that not all legal questions have clear-cut answers; that the meaning of a statutory text or a judicial decision may vary depending upon the perspective from which the matter is viewed; and that underlying the technical rules with which all lawyers have to grapple is a deeper layer of issues that engage such realms as morality, philosophy and politics.

Does this mean that people who have studied Law as a degree subject become better lawyers? Perhaps; although there are many excellent lawyers who did not study Law at university (Sumption being one of them). But what it clearly does mean is that Law, studied as an academic subject at university, is a rich and fascinating subject: and that even if Law can, at some level, be picked up in the way Sumption suggests, studying Law at university has far, far more to offer than a grasp of dry, technical rules.

In this week’s Cambridge Law Faculty debate, Sumption will defend the proposition: “Those Who Wish to Practise Law Should Not Study Law at University”. Virgo will oppose. For a foretaste of Virgo’s arguments, take a look at the two videos below, in which he argues that prospective lawyers should study Law, and that a Law degree also has a great deal to offer people who intend to work in other sectors. If you want to attend the debate, you will find more information about it here.

New cases and developments in administrative law

Screen shot 2012-12-21 at 17.33.09If you are currently doing a public law or administrative law module, you may be interested in these online updates to my book, Beatson, Matthews and Elliott’s Administrative Law: Text and Materials. The updates provide summaries of and extracts from key cases decided between January and October 2012, as well as information on other relevant developments in this area. The online resource centre for the book is free to access; no password is required.

Legal constitutionalism, political constitutionalism and prisoners’ right to vote

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This post is an extract from Oxford University Press’s latest public law newsletter. In it, Professor Robert Thomas and I comment on the recent controversy concerning rulings by the European Court of Human Rights on the right of prisoners to vote. Professor Thomas and I are co-authors of the undergraduate textbook Public Law, published by Oxford University Press. 

Our textbook, Public Law, is organised around three themes that are crucial to the UK’s contemporary consititutional arrangements. One of them is the distinction and relationship between legal and political forms of constitutionalism. Students often find such apparently theoretical or abstract notions off-putting: but the current controversy surrounding the right of prisoners to vote in elections is an excellent vehicle for exploring such ideas.

As is well-known, the Strasbourg Court held in Hirst v UK (No 2) that the UK’s blanket ban on voting by prisoners breaches Article 3, Protocol 1 of the European Convention on Human Rights. That was also the view of the Scottish Registration Appeal Court, which, in Smith v Scott, issued a declaration of incompatibility under the Human Rights Act in respect of the relevant legislation. Several years on, the offending legislation has not been amended or repealed—although the Government, hard up against the deadline set by Strasbourg, has now published a draft Bill setting out various options (including no change).

In his recent statement to the House of Commons on prisoner voting, the Justice Secretary, Chris Grayling MP, said that he takes his “obligation to uphold the rule of law seriously”, but that it “remains the case that Parliament is sovereign”—the implication being that it need not jump when the courts tell it to. In these remarks, Grayling (intentionally or otherwise) encapsulates the tension between the competing claims of legal and political constitutionalism.

The perceived deficiencies of the former and strengths of the latter are postulated in increasingly sharp terms by much of the political rhetoric surrounding not only the prisoner voting issue, but other bêtes noire of those opposed to judicial “interference”. Consider, for example, the Prime Minister’s speech in November proposing to make judicial review harder to access in order to curb (what is perceived to be) unwarranted judicial meddling in the business of government.

It is always difficult to judge whether phenomena such as these are merely transient flashes in the pan or evidence of a more profound shift. For some time now, the pendulum has been moving—propelled most obviously by the growth of judicial review and the adoption of the Human Rights Act—in the direction of legal constitutionalism. It may be, however, that it is beginning to move back, as the majoritarian case in favour of Parliament’s legislative freedom is stated with increasing boldness, against the backdrop of a relatively activist domestic and European judiciary.

When the second edition of Public Law is published in 2014, the report of the Commission on a Bill of Rights will have been published and picked over, and Hirst—along ­with the Prime Minister’s judicial review proposals—might or might not have been implemented. As we state in the book, and as we frequently remind our own students, it is meaningless to ask whether the UK adheres to legal or political constitutionalism. The constitution of any advanced democracy includes both legal and political forces and constraints; the question is not whether the UK has a political or legal constitution, but the appropriate balance between political and legal forces and constraints in any particular context and the wider lessons to be drawn for our understanding of the constitution. Exploring developments such as prisoners’ right to vote will be key to assessing the contemporary balance between these two traditions.

Why the government’s proposals to restrict judicial review are misconceived

There is nothing novel about tension between the government and the courts: former Home Secretaries, most notably Michael Howard and David Blunkett, picked almighty rows with the judges. But the present confrontation between the coalition and the judiciary is particularly striking, not least because it is now opening up on so many fronts. It includes the long-running saga on voting by prisoners, the furore over the deportation of Abu Qatada, the “secret courts bill”, and the constant background noise concerning the perceived deficiencies of the Human Rights Act and the courts’ judgments given under it.

Today, however, David Cameron has opened up this “war” (his metaphor, not mine) on a new front, by raising the prospect of limiting the courts’ powers to subject government action to legal scrutiny. The proposal, it appears, is to make judicial review more expensive and to reduce the time-limit for bringing claims (which, at three months, is already very short). “Normal rules” were cast aside during the second world war, says Cameron, and the “economic war” in which the country is presently engaged justifies preventing the courts from obstructing the growth agenda.

To anyone who values the rule of law, this is a profoundly depressing and fundamentally misconceived argument. This is so for two reasons.

First, it casts judicial review—and, more generally, the law—as something that gets in the way of efficiently making decisions that promote the public interest. But such thinking is simplistic (at best), plain wrong (at worst). It rests upon a false dichotomy between adherence to law, on the one hand, and effective governance, on the other. Judicial review is in fact a valuable means of shining a light on the dark recesses of the governmental machine, in which inefficiency and incompetence lurk. Indeed, as the Prime Minister himself acknowledged, the prospect of judicial review in relation to the West Coast rail franchise revealed serious deficiencies in the decision-making process that seem likely to have far-reaching implications. Nor does judicial review impose especially onerous standards on decision-makers. Rather, it requires them to do such things as: give those likely to be affected by their decisions a fair opportunity of being heard; take into account all relevant (and no irrelevant) considerations; respect limitations contained in the legislation granting power to the government; and avoid manifestly unreasonable (or, in certain circumstances, disproportionate) decisions.

In fact, judicial review is particularly important in the UK’s constitutional system, given the paucity of other means by which to hold government to account effectively. The electoral system normally (but not invariably, as recent experience shows) delivers a substantial majority for one party; the governing party is generally able to impose its will on the House of Commons; and the House of Lords, while a valuable counterweight, is ultimately the Commons’ legal inferior. External scrutiny of government by independent courts is therefore imperative.

The second problem with Cameron’s analysis is, if anything, more fundamental. It presupposes that the courts’ powers of judicial review are vulnerable to political interference: that the judges’ wings can be clipped provided that the coalition can muster enough support to get the legislation through Parliament. This assumption may turn out to be dangerously misplaced. Indeed, it is no exaggeration to suggest that if the government and Parliament choose to push this point, they may unleash one of the most significant constitutional crises in recent history.

Under the theory of “parliamentary sovereignty”, Parliament is supposedly free to make any law that it wishes. Yet the underlying assumption is that other, political factors will make sure that Parliament does not abuse its authority—and that the legally unlimited nature of Parliament’s law-making power is therefore not something we need lose any sleep over. If, however, Parliament were to attempt to remove (or seriously reduce) the courts’ constitutional powers legally to hold the government to account, then it would at least be arguable that Parliament had failed to keep its side of the bargain—and that courts could retaliate in kind.

This may seem far-fetched. But in fact precisely such a possibility has been canvassed by senior judges. In the Jackson case, decided in the aftermath of an earlier attempt to interfere with judicial review, Lord Steyn said that judicial review may be a “constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. This comment was made against the backdrop of proposals to prevent judicial review of certain decisions, rather than (as under the proposals) to make judicial review harder. But the government should not draw undue comfort from that distinction: a point must come when seeking judicial review is so practically difficult (e.g. because of an unreasonably short time limit or unmanageable costs) that its theoretical possibility fails to meet the underlying constitutional concern. In 1997, Laws J, in the case of Witham, held that there is a constitutional right of access to justice, and that high court fees may breach that right. Against this background, the prospect of deliberately raising court fees in order to reduce access to justice is a highly suspect step that is likely to attract critical scrutiny by the courts.

The UK’s unwritten constitution relies upon a delicate—if unarticulated—balance of power between Parliament and the courts. That balance can be retained only if each side is appropriately respectful of the other. And that, in turn, requires that Parliament resists the temptation to undermine the courts’ constitutional role by significantly restricting their powers of judicial review. The Prime Minister should not blithely assume that any attempt to do so would succeed. And if he chooses to pursue the matter, he may find that waging “war” on judicial review triggers a bloody battle with the judiciary—from which neither side may emerge unscathed.

Obama’s victory and the future direction of the US Supreme Court

If you were interested in my post earlier this week concerning the influence of US Presidents on membership of the Supreme Court – and so, indirectly, on the direction of that Court’s case law – you may also like to read this post on a US constitutional law blog. It considers whether President Obama might make appointments to the Court that could significantly affect its approach to such questions as gun control and gay marriage.

The US presidential election, the Supreme Court and judicial appointments

After what seems like a very long campaign, Americans are voting today for their next President. The choice between Barack Obama and Mitt Romney is no doubt an important one (although its significance is perhaps exaggerated by the amount of media coverage: compare, for example, the much more limited discussion of changes, due imminently, at the top of China’s Communist Party).

One of the many reasons why the choice of US President is significant is that it is for the President to make nominations for membership of the US Supreme Court. And in the US, this matters – or is, at least, perceived to matter – much more than in the UK. Part of the explanation lies in the fact that the US Supreme Court has the final word over whether legislation is compatible with the US Constitution. It is, therefore, the Court that determines such questions as to what extent possession and ownership of handguns may be regulated (because of the “right to bear arms” in the Constitution). Incompatible legislation can be struck down by the Court: and because the Constitution speaks in lofty, general terms, it is open to a variety of interpretations. So, at the risk of oversimplification, Republican Presidents aim to appoint conservative Supreme Court Justices who are likely to interpret the Constitution accordingly, while Democratic Presidents seek to appoint liberal Justices.

Against this background, take a look at this article in the Los Angeles Times, in which Erwin Chemerinsky, Dean and Professor of Law at the University of California Irvine School of Law, considers how US Presidents can influence membership of the Supreme Court, and how differently constituted Courts may approach particular issues of constitutional controversy.

Because the US Supreme Court can strike down unconstitutional legislation, and because the UK Supreme Court cannot, it is easy to suppose that who the judges are – and how “conservative” or “liberal” they are – does not matter in the UK. But while the constitutional contexts are different, it would be mistaken to suppose that British judges wield no “political” power. On this point, this paper, from the University of Sheffield, is worth reading. Its authors argue that the UK Supreme Court “is in a position to exert a continuing influence over a wide range of policy issues”. As they go on to observe, once this influence is acknowledged, questions arise about the accountability of the Court for its policy choices: including, presumably, questions about how judges are appointed in the first place. If you want to read more about this in the UK context, Centre Forum’s report, Guarding the guardians: towards an independent, accountable and diverse senior judiciary, is a good starting-point.

The Prince Charles freedom of information veto: two objections

A few weeks ago, I posted about the judgment in Evans v Information Commissioner, in which the Upper Tribunal ruled that correspondence between Prince Charles and several Government Departments had to be released under the Freedom of Information Act 2000. The letters in question have been referred to as “advocacy correspondence”, in which Charles urged his own views upon Ministers — presumably in the hope or expectation that those views would be taken account of, and perhaps adopted, in the formulation of policy.

The Government Departments resisted disclosing the correspondence, seeking legally to justify this position by asserting a public interest in non-disclosure. The Upper Tribunal disagreed, ruling that there was a public interest in releasing the letters: if the heir to the throne was using his privileged position to urge his views upon Government Ministers, then there was a powerful case for making the use such privileged access should be transparent. The public surely has a right to know if the elected Government is being lobbied by a powerful individual, whether or not he is the Prince of Wales.

The Attorney-General, however, disagrees. Using his power under section 53 of the Freedom of Information Act, he yesterday overruled the Upper Tribunal by vetoing the release of the correspondence. The Attorney-General (or indeed any other Government Minister) is legally entitled to override the Upper Tribunal in this way if he is in a position to sign a certificate stating that “he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure” to comply with a relevant provision of the Freedom of Information Act.

What this means in practice is that where the Upper Tribunal and the Government disagree on whether (for example) it is in the public interest for information to be released, the Government can have the final word provided that it can demonstrate “reasonable grounds” for its view. The Guardian newspaper has now indicated that it intends to seek judicial review of the Attorney-General’s decision, presumably on the basis that “reasonable grounds” do not in fact exist. Against this background, I want to make two points about the Attorney-General’s decision, each of which reveals (what is, to me at least) an uncomfortable truth about the British constitution.

Democracy

The first point concerns the decision itself. In the statement of reasons provided by the Attorney-General, he points out that the Monarch has a constitutional right —indeed duty — to be consulted by, to encourage and to warn the Government. And, as the Upper Tribunal itself accepted in Evans, a further constitutional convention — the “education convention” — acknowledges that the heir to the throne has the right to be instructed in the business of government in preparation for the time when he or she becomes Monarch. Where the Attorney-General makes a wrong-turning, however, is in his conclusion that it is within the scope of the education convention for the heir to the throne to urge his views upon Ministers.

But even if the Attorney-General were right about this, his reasoning is flawed in a further respect. Accepting that “advocacy correspondence” potentially falls within the education convention is not determinative of whether particular correspondence should be released. In relation to the specific letters in question, the Attorney-General said:

The letters in this case are particularly frank. They also contain remarks about public affairs which would in my view, if revealed, have had a material effect upon the willingness of the government to engage in correspondence with the Prince of Wales, and would potentially have undermined his position of neutrality … [and] his future role as Sovereign.

What this reduces to (in part) is the argument people should not know how Charles sought to influence the elected Government in case that knowledge undermines public confidence in him as a person capable of discharging the duties of King in a politically neutral way. What a profoundly undemocratic argument. Of course, monarchy is itself a profoundly undemocratic institution — and on one level it therefore does not matter what people think of a serving or future Monarch: public opinion (technically) counts for nothing in these matters.

But this is not just about Charles and public confidence in him. It is also about the Government. One reason for wanting to letters to be disclosed is to allow an assessment to be made of whether — and if so to what extent — the Government caved into the pressure that Charles applied. At issue, therefore, is the integrity of the democratic process — and, in particular, whether that process was infected by misplaced ministerial deference to the archaic institution of monarchy. And in that, surely, there is a compelling public interest.

The integrity of the judicial process

The second objection to this sorry episode is a general, not a specific, one. It concerns not the decision taken by the Attorney-General in this case, but rather the fact that, in the first place, the Government is in a position to interfere in relation to such matters. In one sense, there is nothing whatever wrong with the Government having such a power: after all, it was given to the Government by Parliament when it enacted section 53 of the Freedom of Information Act 2000. But it is not quite as simple as that.

The decision in Evans v Information Commission — that the advocacy correspondence should be released on account of the balance of public interest — was taken by the Upper Tribunal. The Upper Tribunal is, to all intents and purposes, a court. As Professor Peter Cane, a leading academic commentator, has put it, tribunals today are not (as they once were) “court substitutes”; rather, they are a “species of court”. Indeed, the Upper Tribunal is, in many senses, a judicial body that is equivalent in status to the High Court. There is, then, something deeply unsettling about a Government Minister being able to, in effect, overturn the decision of such a judicial body. When the Government is subject to judicial review by the High Court (or, in some cases, by the Upper Tribunal) it is unlawful for the Government to disregard decisions and orders made in the course of such litigation. Ministers who ignore the High Court can be held in contempt of court. The rule of law demands that the Government abides by the law as a requirement, not because (and only to the extent that) it wishes to.

In fact, the only way out for the Government when the courts make decisions to which it objects is (if appeals have failed) to get Parliament to legislate, so as to amend the law. When that happens (as it occasionally does) at least the Government is forced to go through a process whereby it invites Parliament to legislate and put forward its Bill for consideration. Of course, the Government’s majority in the House of Commons means that it can normally get its legislation through — but that does not exempt it from having to submit to a public process of scrutiny. In contrast, the Government can overturn freedom of information decisions without going through any equivalent process. On a purely technical analysis, that is fine — because Parliament has provided for this under the 2000 Act. But on a broader view, there is a real risk that this may bring the judicial process into disrepute. What is the point, people will legitimately ask, of getting a court to rule on freedom of information disputes if the Government can simply ignore judicial decisions with which it disagrees? And where does it leave fundamental constitutional values such as the separation of powers and the rule of law if, in this area, the Government is bound by judicial decisions only when it agrees with them?

It will now fall to the High Court — thanks to the judicial review claim being brought by the Guardian — to decide whether the Attorney-General exercised his veto power lawfully. If the court decides that there were no “reasonable grounds” to justify the Attorney-General’s position, then that decision will be quashed and the Upper Tribunal’s decision reinstated. It is to be hoped (but perhaps not expected) that the High Court will review the Attorney-General’s decision rigorously — and, in particular, that the “royal” dimension of the case will not cause the court to exhibit needless deference.

A right to administrative justice?

The Human Rights Act: to be replaced by a Bill of Rights?

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.