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Published online by Cambridge University Press: 24 January 2025
This essay addresses two related questions: is participation by citizens in administrative decision-making constitutionally regulated? And if so, to what extent and in what circumstances? Obviously, answers to these questions may vary from one constitutional system to another. The limited aim of the essay is briefly to survey some of those answers and suggest how they might be explained. I will not attempt to state comprehensively the relevant law of any jurisdiction, but I will draw illustrations and examples from several. Nor (for reasons of space) will I tackle any of the underlying theoretical, empirical and practical questions about the functions, effects, costs and benefits of participation and its constitutional regulation. Nevertheless, the essay’s modest objective is worth pursuing in order to provide a clear analytical framework for consideration of such questions. Much of the very large literature on participation does not expressly advert to its constitutional regulation.
I am very grateful to Geoffrey Lindell, Leighton McDonald, Fiona Wheeler and an anonymous referee for constructive comments on an earlier version of this essay.
1 Nancy, C Roberts (ed), The Age of Direct Citizen Participation (2008)Google Scholar.
2 Adopting Lon Fuller's famous phrase: ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353.
3 This term is borrowed from Philip, Pettit, ‘Democracy, Electoral and Contestatory’ in Ian, Shapiro and Stephen, Macedo (eds), Designing Democratic Institutions (2000) 105Google Scholar.
4 This use of the term is circular, of course. It is underpinned by some concept of basic requirements for and characteristics of a good governmental system. I am grateful to Andrew Geddis for discussion on this point. See also Eric, Barendt, An Introduction to Constitutional Law (1998) 26–32Google Scholar.
5 Andrew, Butler and Petra, Butler, The New Zealand Bill of Rights Act: A Commentary (2005) 9Google Scholar. This mindset might include, for instance, a strong presumption against implied repeal.
6 Ibid.
7 Thoburn v Sunderland County Council [2003] QB 151, 176 [37] (Laws LJ).
8 Ibid 185 [61] interpreting the decision in Factortame Ltd v Secretary of State for Transport [1990] 2 AC 85.
9 Anthony, Bradley, ‘The Sovereignty of Parliament — Form or Substance?’ in Jeffrey, Jowell and Dawn, Oliver (eds), The Changing Constitution (6th ed, 2007) 25, 41–7Google Scholar.
10 [2003] QB 151; Geoffrey, Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?’ (2006) 17 Public Law Review 188Google Scholar, 199–200.
11 [2003] QB 151, 186 [62].
12 Ibid 186 [63]. The procedural provisions of the US Administrative Procedure Act can be ‘superseded or modified’ only by express enactment of a later statute: 5 USC § 559. However, § 559 does not give those provisions de iure constitutional status in the relevant sense because § 559 does not have this status.
13 [2002] UKHL 32, [11].
14 Ibid [33].
15 This is not to say, of course, that statutes may not have de facto constitutional status in a system with a (big-C) Constitution. See J J, Spigelman, ‘Foundations of Administrative Law: Toward General Principles of Institutional Law’ (1999) 58(1) Australian Journal of Public Administration 3, 7-8Google Scholar; William, N Eskridge Jr and John, Ferejohn, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215Google Scholar.
16 Not, at least, unless the implication is ‘necessary'. There may be some common law principles that have constitutional status in the stronger sense of being beyond parliamentary control: Bradley, above n 9, 29, 40–1.
17 [1969] 2 AC 147. See also R v Lord Chancellor; Ex parte Witham [1998] QB 575; Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340.
18 The House of Lords effectively read the words ‘valid not purported’ into the relevant statutory provision to qualify the word ‘determination'.
19 See generally Francis, Bennion, Understanding Common Law Legislation: Drafting and Interpretation (2001)Google Scholar ch 15.
20 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
21 See, eg, Summers v Earth Island Institute, 129 S Ct 1142 (2009).
22 Nor can the right to vote be abridged on account of race (Fifteenth Amendment (1870)), sex (Nineteenth Amendment (1920)) or non-payment of taxes (Twenty-Fourth Amendment (1964)).
23 (2007) 233 CLR 162; Leslie, Zines, The High Court and the Constitution (5th ed, 2008) 559Google Scholar–63.
24 In Hirst v UK (No 2) (2005) IX Eur Court HR 187 the European Court of Human Rights held a blanket ban on voting by convicted prisoners to be in breach of this provision. At the time of writing the UK government had not yet implemented the decision.
25 As in the saying, ‘Man proposes but God disposes', which is attributed to Thomas à Kempis in The Imitation of Christ.
26 Although A V Dicey opined that the UK Parliament could constitutionally transfer all its powers to ‘another person or body of persons': An Introduction to the Study of the Law of the Constitution (10th ed, 1959) 68 n 1; see Leslie, Green, ‘The Duty to Govern’ (2007) 13 Legal Theory 165, 182–3Google Scholar. The US Constitution forbids delegation of the power to make primary legislation to a subset of the institutions constituting the legislature: INS v Chadha, 462 US 919 (1983). The English Constitution does not: R (Jackson) v A-G [2006] 1 AC 262.
27 It might be expected that the ‘independent and impartial tribunal established by law’ required by Article 6 of the European Convention on Human Rights would be a body staffed by persons acting as public officials. In Heald v Brent London Borough Council [2009] EWCA Civ 930 the English Court of Appeal held that contracting out to an NGE of the function of reviewing decisions made by council employees about entitlement to council housing did not infringe Article 6. This decision was made on the basis that the decision-maker was sufficiently ‘independent and impartial'. It was merely assumed that an NGE could be a ‘tribunal established by law'. The word ‘court’ is used twice in Art 6, which might suggest that the Article requires a hearing before a GO. However, the context seems to be the trial of criminal charges, a function widely considered to lie at the very core of judicial power: eg, Lane v Morrison (2009) 239 CLR 230.
28 There seems to be no general objection to conferral on the executive, or even on NGEs, of judicial power in the broader sense. This would support a broad interpretation of ‘tribunal’ in Art 6 of the ECHR (see previous note). However, the line between the two senses of judicial power is by no means clear.
29 This word is used in contrast with ‘powers’ or ‘functions'. Much administration involves legislation (rule-making) and adjudication, which are generally referred to as ‘powers’ or ‘functions'. Here, our concern is with ‘tasks’ — such as welfare and regulation — to the performance of which such powers or functions contribute.
30 The Appointments Clause of the US Constitution may provide a peg on which to hang some control of privatisation of executive functions: Jack, M Beermann, ‘Privatization and Political Accountability’ (2001) 28 Fordham Urban Law Journal 1507, 1511–13Google Scholar; Paul, R Verkuil, ‘Outsourcing and the Duty to Govern’ in Jody, Freeman and Martha, Minow (eds), Government by Contract: Outsourcing and American Democracy (2009) 310Google Scholar.
31 But the Israeli Supreme Court has recently held privatisation of prisons to be unconstitutional on the ground that transferring responsibility for managing a prison to a contractor aiming at profit would violate the basic rights of prisoners to dignity and freedom: Academic Center of Law and Business v Minister of Finance HCJ 2605/05 (19 Nov 2009) (Supreme Court of Israel).
32 397 US 254 (1970).
33 R J, Pierce, S A, Shapiro and P R, Verkuil, Administrative Law and Process (4th ed, 2004) 228–9Google Scholar. Thus, the allocation of adjudicatory functions between Article III courts and administrative agencies was originally treated by the US Supreme Court as an aspect of due process: Edward, L Rubin, ‘Due Process and the Administrative State’ (1984) 72 California Law Review 1044, 1048–9Google Scholar.
34 Article 6 also deals with trial of criminal charges. In this essay I have not attempted to deal with administrative decision-making in the criminal justice system.
35 For instance, the fair hearing required by natural justice must be available before the decision is made whereas due process may be satisfied by a post-decision hearing.
36 This interpretation of the conceptual foundation of due process and procedural fairness respectively, is not the only possible understanding of their relationship. For instance, it may be that due process is more rigorously outcome-oriented and instrumental than procedural fairness: see, eg, D J, Galligan, Due Process and Fair Procedure: A Study of Administrative Procedures (1996)Google Scholar ch 6; Rubin, above n 33, 1102–4. If so, it might be less informed by the value of participation.
37 Bi-Metallic Investment Co v State Board of Equalization, 239 US 441 (1915). In US public law, ‘adjudication’ is used in a very wide sense, encompassing not only dispute resolution and review of primary decision-making but all administrative activity other than rule-making.
38 Bates v Lord Hailsham of St Marylebone and others [1972] 1 WLR 1373; G J, Craven, ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’ (1988) 16 Melbourne University Law Review 569, 570Google Scholar. A party may acquire a ‘legitimate expectation’ of being consulted before a rule is made, but this is a very fragile, non-constitutional common law protection: Peter, Cane, Administrative Law (4th ed, 2004) 170–1Google Scholar. Of course, there is no bright line between rule-making and legislating on the one hand and administering on the other.
39 On the other hand, if due process were understood as being more rigorously concerned than procedural fairness with ensuring the proper application of (existing) law (see above n 36), it would be easier to explain why it does not apply to rule-making and correspondingly more difficult to explain the inapplicability of procedural fairness.
40 Matthew, D McCubbins, Roger, G. Noll and Barry, R. Weingast, ‘Administrative Procedures as Instruments of Political Control’ (1987) 3 Journal of Law, Economics and Organization 243Google Scholar.
41 Other possible explanations include a greater belief in the possibility of apolitical expertise in administration and the lesser involvement of elected officials in rule-making in the US system than in parliamentary systems.
42 Thomas, O. McGarity, ‘Some Thoughts on De-Ossifying the Rulemaking Process’ (1991-2) 41 Duke Law Journal 1385, 1399Google Scholar.
43 Eskridge Jr and Ferejohn, above n 15, 1266.
44 Michael, Asimow, ‘The Administrative Judiciary: ALJ's in Historical Perspective’ (2000) 20 Journal of the National Association of Administrative Law Judges 157, 163Google Scholar.
45 Jeffrey, S Lubbers, ‘The Transformation of the US Rulemaking Process — For Better or Worse’ (2008) 34 Ohio Northern University Law Review 469Google Scholar.
46 Richard, B. Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard Law Review 1667Google Scholar.
47 That is, the minimum procedural requirements for enactment of primary legislation, of which the law of administrative rule-making procedure may be understood as a counterpart.
48 These are the main components of ‘informal', ‘notice and comment’ rule-making procedure laid down in the APA and elaborated by the courts.
49 The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, [2007] OJ C306/15 Art 8B(3), imposes on the European Commission an obligation to ‘carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent', thus converting ‘what was previously an administrative practice … into a constitutionally guaranteed procedure': Francesca, Bignami, ‘Three Generations of Participation Rights before the European Commission’ (2004) 68 Law and Contemporary Problems 61Google Scholar, 81 (referring to the equivalent provision of an earlier treaty that did not come into force). The detailed implications and practical impact of this provision remain to be seen, of course.
50 See, eg, Richard, Mulgan, Holding Power to Account: Accountability in Modern Democracies (2003)Google Scholar.
51 Peter, Cane, Administrative Tribunals and Adjudication (2009), 209–18Google Scholar and ch 7.
52 Peter, Cane and Leighton, McDonald, Principles of Administrative Law (2008) 205–7Google Scholar. By itself, of course, this is a very thin protection of ‘access to justice'. In Dietrich v R (1992) 177 CLR 292, two Justices of the High Court drew out of the constitutional concept of judicial power a right to a fair trial that has implications for the legal representation of criminal defendants (for instance): Zines, above n 23, 275. However, in New South Wales v Canellis (1994) 181 CLR 309, 310, the Court held that ‘the Dietrich principle’ (whatever its constitutional status) ‘does not apply to civil proceedings'.
53 In practice, this is also generally true of the High Court by virtue of the fact that the Federal Court of Australia has statutory jurisdiction equivalent to the High Court's jurisdiction under s 75(v). There is an argument that original judicial review jurisdiction is ‘entailed’ in the grant of judicial power in Article III of the US Constitution: J M, Beermann, ‘Common Law and Statute Law in US Federal Administrative Law’ in Linda, Pearson, Carol, Harlow and Michael, Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (2008) 52–3Google Scholar.
54 Douglas, E Edlin, ‘A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States’ (2009) 57 American Journal of Comparative Law 67Google Scholar. See also Henry, P Monaghan, ‘Marbury and the Administrative State’ (1983) 83 Columbia Law Review 1Google Scholar; SirOwen, Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’ in Jesting Pilate and Other Papers and Addresses (1965) 203Google Scholar. Presumptions that are understood to be firmly rooted in the Constitution have been said to have ‘quasi-constitutional’ status: William, N Eskridge Jr and Phillip, P Frickey, ‘Quasi- Constitutional Law: Clear Statement Rules as Constitutional Lawmaking’ (1992) 45 Vanderbilt Law Review 593Google Scholar.
55 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
56 A recent attempt by the UK government to legislate to oust judicial review of decisions of immigration tribunals was met by so much protest that the proposal was dropped: Richard, Rawlings, ‘Review, Revenge and Retreat’ (2005) 68 Modern Law Review 378Google Scholar.
57 See generally Lord Lester of Hill, Herne, Lord, David Pannick and Javan, Herberg (eds), Human Rights Law and Practice (3rd ed, 2009)Google Scholar 4.6.23–4.6.25.
58 See generally Butler and Butler, above n 5, 951–4.
59 Ibid 952.
60 See, eg, Heather, Elliott, ‘The Functions of Standing’ (2008) 61 Stanford Law Review 459Google Scholar. Standing is, in general, a more high-profile issue in US law than in English, Australian or New Zealand law. This may reflect the difference, noted in the earlier discussion of due process and procedural fairness, between the US institutional-balance approach and the individual rights approach. In the US standing is seen as a tool for regulating the relationship between the courts and the legislature and for keeping the former off the latter's turf. By contrast, under the individual rights approach, standing is concerned with protection of individual interests and ‘access to administrative justice'.
61 In re Judiciary and Navigation Acts (1921) 29 CLR 257, 265.
62 For instance: ‘questions of standing … are subsumed within the … requirement of a “matter“': Pape v Commissioner of Taxation of the Commonwealth (2009) 238 CLR 1, 68 (Gummow, Crennan and Bell JJ) (emphasis added). See also Henry, Burmester, ‘Limitations on Federal Adjudication’ in Brian, R. Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 245–54Google Scholar.
63 For an analysis of the latter concept see Cane, above n 51, ch 5.
64 It is worth noting that ‘proportionality', a ground of judicial review not embraced by the High Court, has been developed by English courts primarily in order to protect fundamental common law rights and rights under the ECHR. It may be understood as an aspect of constitutional regulation of administrative decision-making.
65 (1997) 146 ALR 126, 142.
66 Butler and Butler, above n 5, ch 27.
67 See, eg, Marilyn, L Pilkington, ‘Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms’ (1984) 62 Canadian Bar Review 517Google Scholar.
68 See, eg, Jason, N E Varuhas, ‘A Tort-Based Approach to Damages under the Human Rights Act 1998’ (2009) 72 Modern Law Review 750Google Scholar.
69 Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971); Lawrence, Rosenthal, ‘A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings’ (2007) 9 University of Pennsylvania Journal of Constitutional Law 797, 815–21Google Scholar.
70 For an exploration of possible reasons for reluctance to impose liability for breaches of public (including constitutional) law see Peter, Cane, ‘Damages in Public Law’ (1999) 9 Otago Law Review 489, 493–8Google Scholar.
71 Note also that there is no constitutionally guaranteed minimum of merits review analogous to the constitutionally guaranteed minimum of judicial review: the right to seek merits review depends entirely on statutory provision. By contrast, the courts’ supervisory (judicial review) jurisdiction is ‘inherent’ — ie pre-Constitutional and pre-statutory, claimed by courts for themselves and understood as an aspect of ‘judicial power'.
72 Cmnd 218.
73 Cane, above n 51, 23–48, 69–72.
74 Ibid 195–6.
75 Gillian, E Metzger, ‘Privatization and Delegation’ (2003) 103 Columbia Law Review 1367Google Scholar, 1461.