Should there be a fundamental right to administrative justice in the UK?

By Joe Tomlinson, Lecturer in Public Law, University of Sheffield

Should there be a fundamental right to administrative justice in the UK? This post suggests that this is a topic that has received insufficient attention so far, makes a case for further consideration of it, and identifies some key questions that underlie it.

This blog is in three parts. First, four reasons why it is important to consider a possible fundamental right to administrative justice are set out. Second, the two analyses that have been offered on this matter thus far are considered, and the important points at which they differ are highlighted. Last, ten important issues which require consideration vis-à-vis any possible incorporation of a fundamental right to administrative justice are explained.

Four reasons why this is an important question

There are, at least, four reasons why there should be consideration of the possible incorporation of a right to administrative justice in the UK:

1. Given the importance of ensuring fairness to the individual in day-to-day government, any reasonable proposal which may offer a route to enhance fairness warrants consideration.

2. Recognising a fundamental right to administrative justice – or some variant thereof – is something that more and more domestic constitutions and international treaties now do.

For instance, the Malawian Constitution (1994, revised 1999) provides at Article 43:

Every person shall have the right to—

a. lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and

b. be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known.

The South African Constitution (1996, revised 2012) states at Article 33:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons….

Similarly, Article 47 of the Kenyan Constitution (2010) provides:

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action…

At Article 33, the Somalian Constitution (2012) provides:

33. very person has the right to administrative decisions which are lawful, reasonable and conducted in a procedurally fair manner.

The Constitution of the Maldives (2008) provides at Article 43:

a. Everyone has the right to administrative action that is lawful, procedurally fair, and expeditious.

b. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

c. Where the rights of a person, a group or community has been adversely affected by administrative action, every such person, group or every person who may be directly affected by such action has the right to submit the matter to court.

On the international plane, Article 41 of the EU Charter of Fundamental Rights provides:

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

2. This right includes:

• the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

• the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

• the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

These are just a few examples. The global proliferation of such provisions gives impetus for those in the UK to reflect upon present domestic arrangements in this respect.

3. When considering our human rights arrangements, the UK’s ill-fated Commission on a Bill of Rights did consult on the question of whether there should be a right to administrative justice.

The Joint Committee on Human Rights recommended the inclusion of a right to administrative justice. The Commission (at para. 92, Volume 1) stated that:

There is one other category of potential additional ‘rights’ that we would, however, want to be very carefully considered… for inclusion in any possible UK Bill of Rights, namely a set of rights relating to our civil and criminal justice system. In our second consultation we asked specifically about a right to administrative justice, a right to trial by jury and other specific rights recognised by the common law in the field of criminal and civil justice… perhaps because we are all – our Chair apart – lifelong legal practitioners, we attach great importance to this category of potential rights. We all believe that there are a number of rights relating to our civil and criminal justice system that have come under threat from short term political pressures under successive governments that we would like to see specifically included, and thus protected, if there were to be a UK Bill of Rights.

Though that report was rightly dubbed a ‘damp squib in the long grass’ by Mark Elliott, if our constitutional rights arrangements do come to be revised by the Government then this indicates that administrative justice will be on the table for consideration at some stage.

4. Not much is known about ‘what Brexit means’ at present.

That fact does not, however, mean that we ought to focus exclusively on the Article 50 In the absence of a huge and unexpected political turn-around, it is clear that Brexit will necessitate extensive reformation of the executive branch. Given the informality of much administrative organisation (and how it is altered), the sheer scale of the task facing the civil service, and the low socio-economic means of many of the people who rely upon government the most, post-Brexit administrative reforms inevitably present a high risk of causing unfairness to individuals (unfairness that may go often unchallenged through traditional legal means). Would a right to administrative justice provide welcome protection during this transition period?

Two analyses: Le Sueur, Elliott and Forsyth

There have been two important contributions to this questions thus far. The first was in a 2011 chapter by Andrew Le Sueur. The second was a 2012 blog post by Mark Elliott and Christopher Forsyth, which is an expanded part of the Cambridge Centre for Public Law’s response to a consultation paper issued by the Commission on a Bill of Rights. Their respective arguments are summarised below.

1. Le Sueur made his argument about a right to administrative justice as part of a larger analysis of administrative justice and constitutionalism. Thus the argument ought to be read within the context of that wider analysis in mind. That caveat entered, the core of Le Sueur’s argument can be stated fairly succinctly: the incorporation of a right to administrative justice in the UK—whether through legislative enactment or the common law—would be helpful as it would increase the protections of the individual against the state and would symbolise the contemporary importance of administrative justice. Further, he argues that such a right would ensure more care is taken while legislating or adjudicating on related matters.

2. Elliott and Forsyth suggest a possible ‘textual’ right to administrative justice warrants ‘considerable caution’. They argue 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’. They state that a right to administrative justice already exists in the UK: ‘[t]he 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’. They suggest a key question is thus what ‘a textual right to administrative justice would add’. On that question, they suggest that ‘the risk 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 two analyses set out above can be understood, and distinguished, by reference to two main questions: whether the analysis accepts that a fundamental right to administrative justice already exists in the UK; and whether the analysis argues that the existence of such a right is desirable. The below table maps out how the two analyses speak to each of these questions:

Developing the debate: ten questions

The present analyses are a very helpful starting point in answering this question. But, given the importance of the question, there is scope for much further discussion of this topic. What sorts of questions would that debate need to address? Below is a list of ten questions. This list is by no means exhaustive but each of the questions is an essential consideration.

1. Is there is an extant ‘right’ to administrative justice in the UK? There is disagreement on this point, which has been highlighted above.

2. If there is an extant right to administrative justice in the common law (which is evident in the common law grounds of review), is it helpful to conceive such principles – traditionally understood to be about fixing ‘public wrongs’ – as amounting to a right? This goes to a disagreement at the heart of modern administrative law concerning the ‘righting’ of judicial review principles (see: Jason Varuhas, ‘The Reformation of English Administrative Law? ‘Rights,’ Rhetoric and Reality’ (2013) Cambridge Law Journal 369).

3. What, if anything, is the difference, in the specific context of a right to administrative justice, between a written right (or ‘textual’ right, as Elliott and Forsyth put it) and an unwritten right (a question that Adam Tucker has provided a helpful general starting point on, see: ‘Constitutional Writing and Constitutional Rights’ [2013] Public Law 345).

4. If there were to be a ‘textual’ right enacted, what would be its content? Would it simply be an overarching title for existing grounds of judicial review or would it give the courts a more extensive role in assessing administrative actions and structures?

5. To what extent can a possible ‘textual’ right enhance or damage clarity and certainty in the law?

6. How could and how should such a right be drafted?

7. If a right to administrative justice is desirable, what is the optimum route to incorporation? In the UK context, there would be various avenues to consider g. via an addition to the Human Rights Act 1998, via a new UK Bill of Rights, as a common law fundamental right, through an individual statute etc.

8. If a right to administrative justice is desirable, what is the most feasible route to incorporation? That is, what is the most politically amenable route to incorporation?

9. Would a right to administrative justice only relate to the fairness to the individual or more broadly to ensuring the entire administrative justice system is fair—g. would it include consideration of whether initial decision-making, internal review systems, ombuds are ‘fairly’ organised in the round. Both of the two analyses considered above appear to offer a narrow view – from a ‘legal’ perspective – of the concept of ‘administrative justice’. If that is correct, is there a defensible justification for such a narrow definition? (On the tensions between ‘legal’ and ‘governmental’ perspectives on administrative justice, see: Robert Thomas and Joe Tomlinson, ‘Current issues in administrative justice: Examining administrative review, better initial decisions, and tribunal reform’ (ESRC Report, November 2016.)

10. In view of question (9), would a right to administrative justice be better understood as something akin to a ‘social and economic right’? To put that another way, is a right to administrative justice something more than a conventional civil and political right (such as those seen in the Human Rights Act)? If so, what would the implications of that be for the appropriateness of the existence of such a right in UK constitutional context – where the idea of the legal protection of such rights has been seen as beyond the role of the courts (see: Jeff King, Judging Social Rights (CUP, 2012 Cambridge)).

Whether the incorporation of fundamental right to administrative justice in the UK is a good idea or not (and no answer to that question is offered here), this is an important and pressing question which requires further attention.