Introduction
This article examines the law of public consultation in Hong Kong administrative law, in particular in relation to its underlying rationale(s) and the Hong Kong courts’ reliance on English administrative law. From the perspective of English administrative law, there is a well-established body of case law on when the common law will regulate public consultations held by the government, and to what extent.Footnote 1 The corresponding case law in Hong Kong is more limited in number;Footnote 2 those cases have also tended to straightforwardly apply the English administrative law doctrine to the Hong Kong context.Footnote 3 But this gives rise to an important question: is this appropriate? Although it is obvious that comparative law should not be drawn upon by the courts in disregard of the political-theoretical underpinnings of the legal systems involved,Footnote 4 it seems at least open to academic argument that a significant divergence exists between the foundational political theories that underlie the English and Hong Kong legal systems respectively, particularly with respect to the extent to which the legal systems embrace a liberal democratic political theory.Footnote 5 This issue becomes more obvious when coupled with the fact that (as we shall see) an important theoretical underpinning for the English law of public consultation – stressed in both the English case law and the wider (non-English law-specific) theorisations on public consultation in administrative law – is precisely this: that the law of public consultation bolsters such a liberal democratic political theory.Footnote 6 Whilst (as we shall also see below) the liberal democratic-based rationale for the English law of public consultation is not the exhaustive rationale available,Footnote 7 it is undoubtedly an important rationale: its importance to the English law of public consultation can be readily gleaned from the consistent weight placed upon it by academic commentators and English judges alike.Footnote 8 Given this, it seems surprising that the Hong Kong courts have applied – without at all finding a need to hesitate – English case law on public consultation. This may in the end be unproblematic, after a detailed theoretical discussion, but there is an important theoretical gap that exists in the Hong Kong law of public consultation. Two related questions ought to be asked: if it does occur that the Hong Kong legal system does not share the liberal democratic political theory that the English legal system endorses, (i) what is, or what are, the underlying rationale(s) for the law of public consultation in Hong Kong; and (ii) to what extent is it appropriate for the Hong Kong courts to adopt the English case law on public consultation? The answer to (ii) will obviously be affected by the answer to (i).
To illustrate that this theoretical gap does exist, I note here that there appears to be an important lapse in the academic literature examining the Hong Kong law of public consultation in detail. There does not appear to be any detailed and dedicated examination of this area,Footnote 9 save for an article written by Ho.Footnote 10 But Ho’s argument – for Hong Kong courts to embrace the English law position, so as to provide an alternative foothold for developing democratic participationFootnote 11 – seems to assume the questions at hand: if it cannot be clear whether the Hong Kong legal system does embrace a liberal democratic political theory (at least to the same extent that the English legal system does) – and in the lack of further theorisation about what should happen if it does not, which Ho does not provide – it seems at least too hasty (contra Ho) to commend the direct adoption of English law doctrine into the Hong Kong law of public consultation.Footnote 12
This article hopes to provide a meaningful answer to address this theoretical gap. It will be contended that even if a liberal democratic political theory does not underpin the Hong Kong legal system, first, there are still alternative justifications that will be available to underpin the Hong Kong law on public consultation, based respectively on ‘informed decision-making’ (the informational rationale)Footnote 13 and the expression of respect (the respect rationale),Footnote 14 and second, the English case law can be applied to Hong Kong if the relevant English court’s reasoning can be completed without invoking a liberal democratic political theory as a premise. These propositions – now rather abstractly stated – will be given more content as the discussion unfolds. The overarching theme in this article is that Hong Kong administrative law justifiably retains a law of public consultation, and the corresponding English case law can be of (even great) help in this regard. However, the Hong Kong courts should be keenly aware that the direct implementation of English administrative law on public consultation into Hong Kong law is not necessarily appropriate.
Before we proceed further, two caveats should be noted. First, this article does not address the fundamental question of the extent to which Hong Kong law does share the same liberal democratic political theory as that which underpins the English legal system. This question must be left out from this article – regardless of its importance to examining administrative law – since properly addressing this question will undoubtedly require at least another article dedicated to Hong Kong constitutional law. I remain silent on this question. Despite this, leaving the resolution of this issue out from this article does not deprive this investigation of meaning. For if it does occur that Hong Kong embraces a liberal democratic political theory (as that which underpins the English legal system), there seems to be little ground to resist the transplantation of the English law of public consultation to the Hong Kong context – a position that Ho suggested,Footnote 15 and that the Hong Kong case law on this topic seemed to suggest as well.Footnote 16 The issue is: what if the Hong Kong legal system does not embrace a liberal democratic political theory? It is on this premise that we have to ask the two abovementioned and important questions – what (then) underpins the Hong Kong law of public consultation; and should the Hong Kong law of public consultation still follow the English law doctrine? This article remains a potent answer to this ‘what if’ scenario, which the Hong Kong case law and literature on the law of public consultation have heretofore ignored. And providing such an answer does not only have theoretical, it also has practical significance. For to the extent that the Hong Kong law of public consultation is justified and can adopt the English case law on public consultation – even in this ‘what if’ scenario – it follows a fortiori that the Hong Kong courts can already (to that extent) justifiably apply the English case law, without any concerns that this will be inconsistent with the foundational political theory that underpins Hong Kong’s legal system (whether it turns out to be liberal democratic or not).Footnote 17
Second, this article only addresses the law of public consultation. It is generally observable that Hong Kong administrative law is by and large derived from English administrative law doctrine.Footnote 18 For example, C Footnote 19 – a leading case on Hong Kong administrative law from the Hong Kong Court of Final Appeal (the apex Court in Hong Kong) – contains a discussion on the theoretical basis and limitations for Hong Kong administrative law, as well as the available grounds of review therein.Footnote 20 And much of the discussion is done by reference to English case law.Footnote 21 For example: both Tang PJ and Sir Anthony Mason NPJ (writing the leading judgments in C) suggested that ‘the rule of law’ underpinned Hong Kong administrative law, drawing on the House of Lords’ decision in Alconbury.Footnote 22 They further held that the requirements of procedural fairness applied generally to all decision-makers, drawing on the House of Lords’ decision in Doody.Footnote 23 This highlights the general interconnectedness between Hong Kong and English administrative law.Footnote 24 But if the two legal systems do share a different foundational political theory, the two questions raised earlier may potentially be asked of the other grounds of review as wellFootnote 25 (ie, the ‘what if’ scenario pointed out above may not only affect the law of public consultation, but also other aspects of Hong Kong administrative law). For instance, the general principles of procedural fairnessFootnote 26 have been theorised on the basis of precepts from a liberal democratic political theory (eg, implementing an expansive conception of human dignity,Footnote 27 and facilitating democratic participation when statutory powers are exercised).Footnote 28 But if these theoretical conceptions underpin the English law of procedural fairness – and if the Hong Kong legal system does not share the same liberal democratic political theory as that which underpins the English legal system – it may be that even the well-established principle in Doody cannot be straightforwardly applied to Hong Kong, contra the Hong Kong Court of Final Appeal’s approach in C.Footnote 29 I do not preclude the room for further discussions along this line, but the immediate discussion will be limited to addressing this theme vis-à-vis the Hong Kong law of public consultation. This should not be read to undermine the potential impact of this analysis: for if the analysis in this article is valid, this caveat will in fact highlight that there is much potential for this analysis to be applied (albeit with necessary modifications, if any) to the treatment of other English administrative law doctrines – which may have heretofore been applied without question in Hong Kong administrative law.
The positive law of public consultation in Hong Kong: the current state
Since the focus of this article is on the Hong Kong law of public consultation, it seems the most sensible to begin by examining the status quo. In this regard, Ho has provided a comprehensive analysis of the positive law in Hong KongFootnote 30 – I will accordingly limit myself to stating only the most pertinent points, although (for reasons explained below) I do not entirely agree with Ho’s assessment of the legal status quo. A common theme in the leading cases on public consultation in Hong Kong law is an unquestioning attitude towards adopting English case law.Footnote 31 In Lam Yuet Mei, the Court of First Instance was concerned with a challenge to a decision by the decision-maker to exclude a school from being eligible to recruit primary one schoolchildren – with the very likely result that the school would have to terminate its operations in a few years.Footnote 32 One ground of challenge was that ‘there was no or no proper consultation before the decision was made to exclude the School from the [said eligibility]’.Footnote 33 In discussing the applicable legal principles, Chu J simply applied – without further explanation – the English leading case of Gunning:Footnote 34
For any consultation to be proper, it must be undertaken at a time when proposals are still at a formative stage; sufficient reasons for the proposal must be given to allow those consulted to give intelligent consideration and response; adequate time must be given for consideration and response; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168, cited in R v North and East Devon Hospital Authority, ex p Coughlan [2001] QB 213 at p.258.Footnote 35
Applying these principles to the facts, she held that the consultation in question ‘hardly met the criteria formulated in … Gunning’.Footnote 36 Although she considered that the decision was ultimately not made unfairly, this was due to steps taken by the decision-maker subsequent to the consultation.Footnote 37 It is also interesting to note that Chu J regarded the applicant’s challenge based on public consultation as ‘fall[ing] within the broad ground of procedural impropriety’, which was built upon ‘[t]he underlying concept [of] the duty of a decision maker to act fairly when it has to make a decision that will affect the rights of individuals’.Footnote 38 In pursuing this line of analysis, she cited two English classic authorities on procedural fairness, Lloyd and Doody.Footnote 39 The applicability of these English administrative law cases to Hong Kong law (including most importantly for our current purposes, Gunning) had not been elaborated upon by Chu J, but seemed instead to have been directly assumed. One may plausibly suggest that Chu J simply equated – throughout her analysis – the legal position indicated by these English authorities with the applicable legal position in Hong Kong law.
As Ho has helpfully pointed out: the requirements in Gunning – which Chu J have affirmed in Lam Yuet Mei – have been applied (similarly, without any question) in the cases which followed.Footnote 40 In Lui Yuet Tin,Footnote 41 the applicant challenged the decision-maker’s decision to amend a scheme on road use in Mong Kok, which is a typically busy part of Hong Kong. Part of the challenge was based on a claim that ‘the [c]onsultation’ – which informed the decision in question – had been ‘conducted improperly or unfairly’,Footnote 42 since (as the applicant argued) the questions provided in the consultation were framed in a way that ‘resulted in misleading the consultees’.Footnote 43 In his analysis, Au J simply cited (without further discussion) the four principles from Gunning and also Lam Yuet Mei.Footnote 44 He proceeded to apply the principles from Gunning, stating that ‘[w]hether the Gunning requirements are satisfied must be examined in proper context and the specific circumstances and purpose of the subject consultation exercise’.Footnote 45 On the facts, Au J decided that the questions raised in the consultation had not been ‘misleading’; accordingly, he dismissed the public consultation-based part of the challenge.Footnote 46 His reasoning has clearly assumed the direct applicability of the English administrative law on public consultation to Hong Kong law. Indeed, Au J (in the separate decision of Kwok Cheuk Kin) was happy to state that ‘[t]he legal principles governing fairness in the conduct of public consultation … are well established and not in any material controversy’.Footnote 47 Whilst Kwok Cheuk Kin was rendered three years before Lui Yuet Tin, there is nothing to suggest that Au J did not have in mind those very same (English law-based) principles he later applied – which he regarded as simply uncontroversial in Hong Kong law.
At this juncture, I should register my disagreement with a part of Ho’s analysis of the positive law in Hong Kong.Footnote 48 Ho considers that: (a) ‘Hong Kong’s sparse consultation-related cases have given rise to mere rudimentary public consultation jurisprudence’;Footnote 49 (b) it is problematic that there was an ‘apparent, uncharacteristic reluctance [by the Hong Kong courts] to engage the English authority’;Footnote 50 and that (c) although ‘the Gunning principles have been applied, … albeit sparsely’,Footnote 51 the more modern English cases – most importantly the UK Supreme Court decision in Moseley, which affirmed Gunning and expanded on its requirementsFootnote 52 – ‘have been largely ignored to date by the Hong Kong court’.Footnote 53 Ho is no doubt correct that (numerically) there are few Hong Kong cases that concerned the law of public consultation, and that in those few judgments the Hong Kong courts have not undertaken a detailed discussion of the English law position. However, it does not follow that the Hong Kong law position on this matter is ‘rudimentary’.Footnote 54 This conclusion seems to ignore that the Hong Kong courts have consistently adopted the English law position on public consultation without qualification, and there is very little (if any) from the cases to indicate the contrary. The Hong Kong courts’ omission to engage in a detailed discussion of the English law cases seems (indeed) to support this very stance. If they were minded to depart from the English law authorities (or even to qualify them), the courts would undoubtedly have to engage with the reasoning in the English law cases, when they have heretofore been applied to Hong Kong law without qualification.Footnote 55 The better way to read the Hong Kong cases (I suggest) is to regard them as indicators that a ‘green light’ has been given for the direct travel of the English legal principles on public consultation to Hong Kong law.Footnote 56
It is in this light that we may consider what Ho says about the Hong Kong law’s treatment of Moseley, the leading case in the English law of public consultation. Ho is right to point out that Moseley has not received much mention in the Hong Kong cases: the three existing Hong Kong cases that have seen Moseley featured have given it no detailed treatment.Footnote 57 But none of these cases has provided any indication to depart from – or even qualify – Moseley. Whilst the first case (Tang Shuk Chun) only featured Moseley as part of counsel’s submissions, in the two remaining cases Moseley was cited by the court to make a quick – and presumably in the court’s view, uncontroversial – point.Footnote 58 This is entirely compatible with the suggestion above – that the Hong Kong courts have thus far signalled a ‘green light’ to the unqualified adoption of the English case law on public consultation – and the unelaborated application of Moseley is entirely in line with (and indeed constitutes evidence of) this. Given this analysis, it seems fair to submit that the Hong Kong administrative law on public consultation – at least insofar as the common law requirements (as opposed to statutory requirements) are concerned – is simply a copy of its English administrative law counterpart. And so at least insofar as the English law of public consultation is not (to use Ho’s wording) ‘rudimentary’Footnote 59 – and such a claim seems hardly plausible, given the volume of English case law on this topicFootnote 60 – I would respectfully disagree with Ho’s assessment of the status quo in Hong Kong law.
Why consult? Contrasting rationales for the law of public consultation
This discussion now moves on to considering the first of the two questions raised at the outset: what is, or what are, the underlying rationale(s) for the law of public consultation in Hong Kong? The foregoing has explained that the Hong Kong cases have consistently adopted the English law position without qualification and without any detailed theoretical examination of its appropriacy.Footnote 61 It will be contended in this section that although the most commonplace argument for the law of public consultation – the liberal democracy-based rationale – cannot be transposed to Hong Kong law (if the Hong Kong legal system is not underpinned by a liberal democratic political theory), two rationales also found applicable in English law will remain available to justify having the law of public consultation in Hong Kong: they are that of facilitating ‘informed decision-making’,Footnote 62 and expressing respect to the citizens involved.Footnote 63 These rationales – and I particularly stress, including the latterFootnote 64 – can be properly endorsed by a legal system, even if it does not share the English legal system’s commitment to a liberal democratic political theory.
The liberal democracy-based rationale
The theoretical (and non-English law-specific) literature on the law of public consultationFootnote 65 has provided us with a good liberal democracy-based rationale to support a duty for the decision-maker to undertake consultation before committing to major policy changes through administrative decision-making. This – as we shall see below – is not an exhaustive justification for the English law of public consultation, but is no doubt an important one relied upon by academic commentators and courts alike.Footnote 66 Whilst liberal democratic political theories contain many intricacies that disagree with each other,Footnote 67 there are some broad themes that are quite difficult to avoid for any political theory to be properly classified as liberal democratic.Footnote 68 A liberal democratic political theory will find it axiomatic that all ‘citizens [are] free and equal persons’.Footnote 69 A liberal democratic political theory also supports ‘the notion of the political sovereignty of the people’, whereby ‘[p]olitical power rests, in the last resort, with the electorate’;Footnote 70 and it is as ‘the representatives of the people’ that the legislature ‘grants, recognises and sets limits to the powers of the executive government’.Footnote 71 Therefore, Rawls writes:
[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws. In a constitutional regime the special feature of the political relation is that political power is ultimately the power of the public, that is, the power of free and equal citizens as a collective body.Footnote 72
But adopting these premises – which are quite inevitable for any liberal democratic political theory – leads us to an intractable problem: if all citizens are regarded as equal, how can one justify the rather inevitable situation where some citizens will hold greater political power than others (consider, eg, that the Prime Minister will inevitably hold greater political power than an ordinary citizen who is not holding political office)?Footnote 73 Many attempts have been made to answer this problem, but (with Raz being a notable exception)Footnote 74 those attempts at justification will almost inevitably involve maintaining a connection between those exercising greater political power and the other (supposedly equal) citizens who do not hold a political office, in a way that reflects the equality of all citizens.Footnote 75 The most classic response to the problem is to stress that although some citizens will wield greater political power over others – by virtue of the fact that they hold political office – they only hold political office through being elected as representatives of the other citizens, in an election in which all equal citizens can participate on a fair basis: this way, all political decisions within the political community will reflect (albeit indirectly) a conception of equality between all citizens.Footnote 76 And this (I add) is why Waldron famously objects to judicial review: he considers that decision-making by courts (as opposed to decision-making by elected institutions) will weaken that connection between those exercising greater political power and the other (equal) citizens, and thus undermine this classic response.Footnote 77
But if this classic response is to have credibility, it must be realistic.Footnote 78 One obvious problem this response confronts is that in modern public administration – with many thousands of administrative decisions made on a daily basis within the political community – it cannot realistically be expected that citizens can equally participate in the making of each of those administrative decisions.Footnote 79 Indeed, it is realistic to expect that most citizens will not even be able and/or willing to become sufficiently informed of a significant proportion of administrative decisions being made within the political community.Footnote 80 The fact that representatives have been elected by citizens to hold these administrative decision-makers accountable does not offer much to help mitigate this problem,Footnote 81 notwithstanding the fact that such accountability may be regarded as a fundamental constitutional principle in the legal system (eg, in the UK).Footnote 82 Due to limitations in time, incentives, and energy from other citizens and/or their elected representatives, the prime majority of these administrative decisions will realistically be left to be made by unelected administrative decision-makers with no or minimal scrutiny from citizens and elected legislators alike.Footnote 83 In other words: in respect of these administrative decisions, there will be an evident amount of unequal political power where only some of the (equal) citizens within the political community have a realistic say on what decision is to be made, and where even the elected representatives cannot offer much to plausibly reconcile this with the equality of all citizens.Footnote 84 This poses a significant challenge to the classic solution, offered in defence of the liberal democratic political theory.
This is the point at which theorists argue that public consultation can make a meaningful contribution in bolstering the plausibility of the liberal democratic political theory: the argument is that there is no reason why one should limit oneself to maintaining democratic participation through elections and elected representatives; participation by citizens can take place at multiple levels within the political community, including at the level of administrative decision-making.Footnote 85 And one important (although obviously not exclusive) means of facilitating this participation in the level of administrative decision-making is through holding public consultations – ie, by being able to participate in public consultations, citizens within the political community can maintain a democratic connection with the administrative decision-makers who are ultimately to make the administrative decision in question.Footnote 86 In other words, public consultations help make good the promise of the liberal democratic political theory. There are of course limitations to this argument, and one should not be under the illusion that public consultation offers a panacea for all the difficulties that surround the abovementioned classic response. For instance, it may not appear evident how public consultation is compatible with the equality of all citizens, since there is the obvious possibility for the more powerful voices to dominate the consultation.Footnote 87 There are also important questions about whether the mere fact of public consultation is sufficient to realise equality amongst citizens – office holders and non-office holders alike – and whether one should go further to accord decision-making power to citizens directly.Footnote 88 There will also be questions about other citizens being left out of the picture,Footnote 89 especially if the public consultation has a confined scope and/or is carried out in a way that privileges the participation of some over others.Footnote 90 But these limitations should not deter us from seeing the obvious point that public consultation does offer an additional channel for (equal) citizens to participate in the making of administrative decisions, when the elected representatives can only play a limited role in this regard.Footnote 91 It offers some plausibility for the liberal democratic political theorist to claim that citizens have also been enabled to participate when legislation is being administered,Footnote 92 and that the classic response (when supplemented by these additional means of participation for citizens) does not entirely fail in the face of modern public administration.Footnote 93
On this view, the liberal democracy-based rationale provides strong support for the law of public consultation in the context of English administrative law.Footnote 94 This analysis is echoed in the English case law, including in both leading judgments in Moseley. There, Lord Wilson wrote that an important (although not exclusive)Footnote 95 purpose ‘underl[ying] the requirement that a consultation should be fair’ was that this was ‘reflective of the democratic principle at the heart of our society’.Footnote 96 Lord Reed suggested that ‘[t]he purpose of this particular statutory duty to consult [on the facts of Moseley] must … be to ensure public participation in the local authority’s decision-making process’,Footnote 97 and that ‘[i]n order for the consultation to achieve that objective, it must fulfil certain minimum requirements’,Footnote 98 such that ‘[m]eaningful public participation in this particular decision-making process’ requires compliance with the relevant common law requirements on public consultation.Footnote 99 In the English Court of Appeal decision in Article 39, Barker LJ had similarly suggested that ‘consultation about regulatory change is part of a wider democratic process’.Footnote 100
I should stress this: the liberal democracy-based rationale resonates with the foundational political theory underlying the English legal system is significant, particularly when one seeks to explain why the English judges should therefore enforce the law of public consultation in English administrative law.Footnote 101 Since the English legal system is predicated on a liberal democratic political theory,Footnote 102 two points follow for English administrative law as a component of that legal system. First, consider how English administrative law is to be theorised. If Dyzenhaus is right to say that ‘a theory of law is always at base a political theory’,Footnote 103 a theory of English administrative law will necessarily be predicated on a political theory; and as a component of the English legal system itself, that political theory will naturally be that which founds the entire legal system.Footnote 104 It is therefore entirely unexceptional that English administrative law is to be theorised, by reference to the foundational political theory of the English legal system. Second, it is sensible that English administrative law is developed in a way that upholds the legal system’s very foundational political theory.Footnote 105 This point goes beyond the last. In defending the legal system’s foundational political theory against administrative acts that may be (inadvertently or otherwise) inconsistent with it, the courts are ensuring the overall theoretical coherence of the legal system (ie, not only are courts themselves acting coherently with the foundational political theory as they develop the principles of English administrative law), but also other political actors (ie, the administrative decision-makers) are required to act coherently with that foundational political theory.Footnote 106 The upholding of the common law duty to consult in English administrative law – by reference to a liberal democracy-based rationale – is one example of this, in the context of the English legal system.
Justifying the Hong Kong law of public consultation: do the rationales in Moseley apply?
The discussion above shows that the English law of public consultation is importantly predicated on a liberal democracy-based rationale, and that this rationale has also been commonly cited within the relevant academic literature. Of course, if the Hong Kong legal system is similarly predicated on a liberal democratic political theory, there seems to be little reason for hesitating to transplant the English law of public consultation – including its liberal democracy-based rationale – to Hong Kong law: for if this is the case, there will not be a conflict between the English law of public consultation (with its liberal democratic premises) and the foundational political theory within the Hong Kong legal system.Footnote 107 But assuming that this is not the case, it seems that the abovementioned justification for the law of public consultation will cease to apply – at least with its full force – to Hong Kong law. And this will be potentially problematic for the development of Hong Kong law: as noted above, the Hong Kong courts seem to have neglected to explain why precisely the English law of public consultation ought to be directly transposed to Hong Kong law, whereas (from the perspective of English law) much academic and judicial reliance has been placed on the liberal democracy-based rationale. Therefore, if one cannot show that the Hong Kong legal system shares the same foundational political theory as the English legal system does, the unquestioning attitude of the Hong Kong courts towards the English law of public consultation can be called into question.
But even on the assumption that the two legal systems share a different foundational political theory, it does not necessarily follow that English law of public consultation should be entirely disapplied to Hong Kong. This is because as noted above, the English law of public consultation is not exclusively predicated on a liberal democratic political theory;Footnote 108 there may be multiple rationales that simultaneously justify the English law requirements of procedural fairness, including (as its sub-branch) the law of public consultation.Footnote 109 Whilst many scholars theorising about public consultation have primarily focused on the liberal democracy-based rationale for public consultation,Footnote 110 the English case law has helpfully made clear that a number of other rationales are available to justify the law of public consultation. In Moseley, apart from stating the abovementioned liberal democracy-based rationale for the law of public consultation, Lord Wilson explained that the common law ‘requirement that a consultation should be fair’ was underpinned by two other rationales:Footnote 111 that (a) ‘the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested”’;Footnote 112 and (b) ‘it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel”’.Footnote 113 Citing Lord Wilson’s analysis in Moseley,Footnote 114 Baker LJ made a similar point in Article 39:
The purpose of consultation has various strands. First, experience shows that fair and broad consultation improves the quality of decision-making. Secondly, as a general proposition, those affected by prospective regulatory change may, in certain circumstances, have a right to be consulted about it and may feel a sense of injustice if they are not.Footnote 115
Let us expand on these rationales. Rationale (a) can be conveniently termed the informational rationale: it stresses the fact that the decision-maker (acting rationally and in good faith) will generally act better if he enjoys a wider range of information being provided to him.Footnote 116 Being possibly situated at a distance from the citizens subject to the administrative decision,Footnote 117 ‘[p]ublic hierarchies may lack the information, ingenuity, know-how, or resources necessary to address social problems effectively’.Footnote 118 Citizen participation in administrative decision-making – including by means of public consultation – may help provide information and perspectives that have been heretofore neglected, including by professionals advising the administrative decision-maker.Footnote 119 Along this line, Edgar has suggested that the law of public consultation ‘enable[s] the implications and impacts of the proposed action to be explained to the decision-maker, and the evidential basis for the proposal to be challenged … [it] also enable[s] the differing values of members of the public to be expressed and taken into account by the decision-maker’: such matters may be summarised as ‘ensuring that the government authority makes an informed decision’.Footnote 120
Rationale (b) can be conveniently termed the respect rationale: that by allowing the citizens affected by the administrative decision to provide their input in the process, respect is thereby accorded to them.Footnote 121 In Moseley, Lord Wilson stated the respect rationale with reference to Osborn;Footnote 122 and in the latter case, Lord Reed had stated the respect rationale in a fuller form – and his Lordship’s important statement deserves quoting in full:
The [respect rationale] was described by Lord Hoffmann … as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.Footnote 123 (emphasis added)
But note that there can be at least two ways of understanding what kind of respect is thereby accorded. First, Crummey suggests that ‘citizens [are respected] as participants in the legal order … in which [they] can sensibly claim authorship’,Footnote 124 not only in relation to the making of law, but also ‘in the administration of law’.Footnote 125 This means that the citizens involved are respected as ‘participants in an on-going process of self-government’ as opposed to being ‘subjects to whom legal rulings are administered from on high’.Footnote 126 Let us call this form of respect ‘respect owed to individuals as democratic citizens’. Second, the citizens may therefore be respected as an entity that matters in the eyes of the legal system, whose views matters and ought to be taken seriously (ie, the citizen is respected as ‘a valued member of the group, whose views are worthy of being heard’),Footnote 127 as opposed to being made subject to ‘an expression of contempt’, which is conveyed by ‘not [being] allowed to present one’s own side’.Footnote 128 Let us call this form of respect ‘respect owed to individuals as valued individuals’. These two forms of respect may obviously overlap with each other (eg, being given respect as a democratic citizen can also amount to respect as a valued individual), but there are also differences between the two: being accorded respect as a valued individual may come with – but may be given independently of – respect as a democratic citizen. This is in fact commonsensical: a university lecturer who consults his students on the exam syllabus may accord them respect as valued individuals (that their views do matter),Footnote 129 but is unlikely to accord them respect as democratic citizens (that the syllabus is their syllabus; that this is a self-governing class).Footnote 130 Those holding political office in a political community may also respect the other citizens in a like manner, short of according them respect as democratic citizens.
At this juncture, the difficulty of the analysis lies in asking the question: do these rationales (mentioned in Moseley and now expanded upon) conform to the Hong Kong legal system even if it is not predicated on a liberal democratic political theory? A simpler answer can be given, in relation to the informational rationale. As Hovell rightly suggests, the value of the informational rationale lies in its ability to (more) successfully realise the rationale(s) underlying the statutory power in question, which is now being exercised by the decision-maker: that whatever rationale(s) that statutory power serves, the informational rationale is valuable for facilitating and enabling that.Footnote 131 Accordingly, even if the statutory power in question is not underpinned by a liberal democratic political theory, it can be seen as valuable for realising that alternative political theory. Therefore, if (stated abstractly) Hong Kong’s legal system is underpinned by political theory X, the informational rationale can help successfully realise political theory X, regardless of what X is.Footnote 132 This renders the informational rationale compatible with Hong Kong’s legal system, whether or not it shares the liberal democratic political theory that underpins the English one.
The more difficult issue lies with the respect rationale. Hovell has warned us that some theoretical justifications offered for administrative procedures – including some based on the notion of respect – are predicated on liberal democratic premises, and that one drawback of this analysis is that these justifications will cease to apply when the legal system in question does not readily accept those premises.Footnote 133 This can clearly be said of the respect rationale when respect is understood as respect owed to individuals as democratic citizens. In a political community that does not embrace a liberal democratic political theory – but seeks to serve the good of the community through other means – it is unclear if the respect rationale (understood in this way) can obtain much force.Footnote 134 For example, if Crummey were to suggest to Plato that it is normatively important for citizens to be recognised as ‘participants in an on-going process of self-government’,Footnote 135 it is clear that Plato would have refuted his suggestion, claiming that this would undermine the proper ordering of the political community wherein the less wise and virtuous will obey the more wise and virtuous.Footnote 136 In short, Plato would not have found it problematic per se that the respect rationale – with respect understood as respect owed to individuals as democratic citizens – is not realised. And if the Hong Kong legal system is not underpinned by a liberal democratic political theory, it is unlikely that the respect rationale (when respect is understood as respect owed to individuals as democratic citizens) can offer much force either; in such a scenario, the Hong Kong law of public consultation cannot be justified on this basis.
But a different story can be told of the respect rationale, when respect is understood as respect owed to individuals as valued individuals. For it is unlikely uncontroversial that whatever political theory underpins the Hong Kong legal system, it does attribute value to the individual citizens within the political community.Footnote 137 Many examples can be given with even invoking Hong Kong’s domestic jurisprudence on constitutional review.Footnote 138 For instance, Hong Kong administrative law embraces the English doctrine of ‘anxious scrutiny’Footnote 139 – and indeed even strengthens itFootnote 140 – when the Hong Kong Court of Final Appeal posited that ‘having regard to the gravity of what is at stake, the courts will on judicial review subject to [decision-maker’s] determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met’, given that the decision ‘is plainly one of momentous importance to the individual concerned’.Footnote 141 Of course, Prabakar and C have embraced these principles in the asylum context, but these statements of principles should really only be seen as an indication of the logical structure of Hong Kong administrative law generally speaking.Footnote 142 This is because in embracing these legal principles, Li CJ (as he then was in Prabakar) only purported to be applying generally applicable Hong Kong administrative law. Citing Doody, he noted that ‘[w]hat are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter’.Footnote 143 There is no inherent reason why the court’s approach in Prabakar cannot be applied (albeit with necessary moderation) to other cases where the individual citizen will be significantly affected.Footnote 144 Such an approach can only be explicable if the Hong Kong legal system (whatever its foundational political theory) attributes value to its individual citizens. From this example we can see that, whether or not the Hong Kong legal system pursues a liberal democratic political theory – upon which the English legal system the predicated – it is difficult to dispute that the Hong Kong legal system at least finds it valuable to accord its citizens respect as valued individuals. Given this analysis, the respect rationale (when respect is understood as respect owed to individuals as valued individuals) accords with well-established themes in the Hong Kong legal system and can also underpin the Hong Kong law of public consultation.
Doctrinal shifts in the Hong Kong law of public consultation: theorisation and illustration
From the foregoing, it can be concluded that even if the Hong Kong legal system does not share the English legal system’s pursuit of a liberal democratic political theory, two arguments (derived from the English law of public consultation itself) are also available to underpin the Hong Kong law of public consultation: the informational rationale and the respect rationale (with respect understood as ‘being respected as a valued individual’). There is no reason why these rationales cannot be applied simultaneously to justify the same procedure (in our case, the procedure imposed by the Hong Kong law of public consultation).Footnote 145 It is on this premise that we investigate the second question raised at the outset: to what extent (then) is it appropriate for the courts to adopt the English case law on public consultation? It will be contended that the English case law on public consultation can be applied to Hong Kong law if the applicable reasoning in the English case law can be explained without invoking a liberal democratic political theory as a relevant premise. To this extent, the application of the English cases to Hong Kong law of public consultation will be appropriate, whether or not the Hong Kong legal system shares (with the English legal system) a commitment to the liberal democratic political theory.
In a different context, Charlton and Weale spoke of an ideal of ‘practical public reasoning’ where decision-makers will ‘set out an explanation and justification for one’s decisions in such a way that others can see the chain of reasoning from assumptions to conclusions’.Footnote 146 This form of reasoning has two important features (amongst others): that ‘it is open to public inspection’, and that ‘the process takes the form of a set of value assumptions, joined together with empirical evidence in a chain of reasoning, leading to a conclusion’.Footnote 147 This form of reasoning is in line with what Finnis calls ‘a genuine principle of public reason’, that ‘fundamental political, constitutional, legal questions ought to be settled according to natural right, i.e. to principles and norms which are reasonable, using criteria of evidence and judgment that are available to all’.Footnote 148 Although neither of these authors was concerned with administrative law per se, I propose that their suggestions can be helpfully applied to the investigation at hand.
Let us posit that the English case law on public consultation consists of a ‘chain of reasoning from assumptions to conclusions’.Footnote 149 If we adopt the position indicated by Moseley and Article 39, the reasoning in these cases should (in the abstract) be: (i) the informational rationale, respect rationale, and liberal democracy-based rationale are valid and normatively important; (ii) these rationales are such that they ought to be safeguarded by the common law imposing certain procedural requirements on the conducting of public consultation;Footnote 150 and (iii) when applied to a particular case at hand (so as to conclude that the decision is unlawful on this ground), the reasoning should involve an additional step that, on the immediate facts, the informational rationale, respect rationale, and/or liberal democracy-based rationale have been undermined by the decision-maker.Footnote 151 Therefore, the courts will inevitably – expressly or impliedly – have to find that the facts resonate with at least one of the rationales underlying the law of public consultation to validly reason that the English law of public consultation (when applied to the facts) leads to the conclusion that the impugned decision has been made unlawfully. This reasoning – if transposed to the Hong Kong law context – ought to be slightly modified assuming the contingency that the Hong Kong legal system does not embrace a liberal democratic political theory. In particular, in such a case, the applicable rationales should be circumscribed to only include the informational rationale and the respect rationale (respect understood as ‘being respected as a valued individual’), for reasons already given above.
Now we have a ready, theoretical answer to the second question posed in the article. English case law on public consultation ought to be applied to Hong Kong law if the reasoning by the court can be affirmed without invoking a liberal democratic political theory in the process. That is if ‘the chain of reasoning from assumptions to conclusions’Footnote 152 from the English case in question can be completed – by relying solely on the informational rationale and/or the respect rationale (respect understand as respect owed to individuals as valued individuals) – it will not be problematic for the Hong Kong courts to follow the English case in question. For if this condition is satisfied, it is immaterial whether or not the Hong Kong legal system does share a commitment to the liberal democratic political theory as the English legal system; if such a commitment is shared, Hong Kong law can (of course) follow the English case. However, even if such a commitment is not shared, the rationales that underpin the Hong Kong law of public consultation can also independently justify the adoption of the English case to Hong Kong law.
I wish to offer two examples of what this relatively abstract answer means to provide some clearer indications of what I have in mind. Consider first Moseley on its own. On the facts, the decision-maker conducted a public consultation with the local residents on its plans to increase the tax liabilities of some local residents, to cover the shortfall from a reduction in funding from the central government.Footnote 153 In the face of the shortfall in funding, the decision-maker had a number of alternatives to increasing the tax liabilities of some local residents, such as by cutting some of its services or ‘applying its deployable reserves of capital’.Footnote 154 However, the decision-maker (preferring the increase of tax liabilities) had framed its consultation in a way that suggested there were no alternatives to increasing the tax liabilities of some local residents, and that the remaining room for manoeuvre related to how the increased tax liabilities should be allocated amongst the residents.Footnote 155 The challenge related to this aspect of the consultation exercise. In both leading judgments, Lord Wilson and Lord Reed respectively found the consultation ‘unfair and therefore unlawful’ on this ground.Footnote 156 Lady Hale and Lord Clarke ‘agree[d] with both judgments’, noting that ‘[t]here appears to us to be very little between them as to the correct approach’.Footnote 157 Whilst this may be true insofar as English administrative law is concerned – which is reasonably the focus of Lady Hale and Lord Clarke’s reasoning in Moseley – there is a critical difference in Lord Wilson and Lord Reed’s reasoning from the perspective of Hong Kong law.
Lord Wilson saw that the common law requirements concerning public consultation ‘must be linked to the purposes of consultation’,Footnote 158 of which he saw three (ie, the informational, respect, and liberal democracy-based rationales, respectively).Footnote 159 In his judgment, he saw no need to draw further distinctions between these rationales. His conclusion that these common law requirements had been breached on the facts (one may thus reasonably conclude) implicitly suggests that these rationales were collectively undermined by the selective consultation, conducted by the decision-maker (ie, he saw that these rationales simultaneously justified his finding that the decision in question was unlawful). For otherwise, one would reasonably have expected Lord Wilson to have clarified how the multifarious purposes of the law of public consultation did and did not (respectively) apply to justify his conclusion. By contrast, Lord Reed explicitly suggested that the legal requirements thereby imposed ‘vary greatly depending on … [inter alia] the purpose for which the consultation is to be carried out’.Footnote 160 Critically, for the purpose of the current arguments, he suggested that ‘[t]he purpose of consultation [on the facts] is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do’ (emphasis added), but that ‘[t]he purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process’.Footnote 161 This is an important remark, because in an earlier landmark decision, Osborn, Lord Reed had himself recognised that the common law requirements of procedural fairness were underpinned by the informational and respect rationales.Footnote 162 When so viewed, Lord Reed’s remark – to distance his reasoning process in Moseley from procedural fairness – seems to be isolating these two rationales from that which ultimately justified his conclusion (ie, that the public consultation was unlawful on the facts). And from our earlier analysis, once these two rationales are discarded, what remains to justify Lord Reed’s conclusion (ie, the rationale that Lord Reed referred to as the need ‘to ensure public participation in the local authority’s decision-making process’)Footnote 163 can really only be the liberal democracy-based rationale for the law of public consultation; this was the underlying rationale on which Lord Reed’s reasoning in Moseley depended.
Applying our analysis from earlier, it seems at least plausible that Lord Wilson’s reasoning can be completed, even if he does not rely on the liberal democracy-based rationale and/or the respect rationale (with respect understood as respect owed to individuals as democratic citizens) for public consultation. His emphasis that ‘[f]airness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why … [the decision-maker] had concluded that they were unacceptable’Footnote 164 is readily explicable, without reliance on these rationales. For instance, on the informational rationale of the law of public consultation,Footnote 165 the public consultation in Moseley was questionable for the simple reason that due to the misleading framing of the consultation, information was only selectively solicited from the citizens concerned; the informational rationale would accordingly be undermined.Footnote 166 I therefore respectfully suggest that Lord Wilson’s reasoning could be adopted into Hong Kong law. But things are quite different for Lord Reed’s reasoning. His reasoning does not appear capable of being sustained if his reliance on the liberal democracy-based rationale is removed, given his explicit dismissal of the analogy to the law of procedural fairness.Footnote 167 Therefore, if Moseley was decided on the force of Lord Reed’s reasoning alone, it is respectfully submitted that the reasoning in Moseley should not be seen as applicable to Hong Kong law, at least on the premise that the Hong Kong legal system does not share the same liberal democratic political theory that the English legal system endorses.
A good contrasting example is Article 39. There, the English Court of Appeal was faced with a legal challenge to a piece of delegated legislation, which ‘introduced a range of temporary to ten statutory instruments governing the children’s social care system’ in response to the challenges brought about by the COVID-19 pandemic.Footnote 168 The challenge mainly concerned the decision-maker’s consultation process prior to the enactment of the delegated legislation, in particular concerning its ‘fail[ure] to consult bodies representing children in care, including the Children’s Commissioner for England’, when a range of other stakeholders had already been so consulted.Footnote 169 As mentioned earlier, Baker LJ suggested that ‘[t]he purpose of consultation has various strands’, which included, respectively, the informational, respect, and liberal democracy-based rationales.Footnote 170 He found ‘that the [decision-maker] was under a duty to consult the Children’s Commissioner and other bodies representing children’s rights’.Footnote 171 One of the grounds of this finding was that ‘given the impact of these proposed amendments on the vulnerable children in the care system, it was … conspicuously unfair not to include those bodies representing their rights and interests within the information consultation which the [decision-maker] chose to carry out’.Footnote 172
Most importantly for our current purposes, Baker LJ expressly reasoned that his conclusion was motivated by the three rationales that supported the application of this duty to the facts: he suggested that ‘[a]ll three strands of the purpose of consultation articulated by Lord Wilson in the Moseley case are present here’.Footnote 173 For instance, Baker LJ relied on the informational rationale, pointing out that ‘the extension of the consultation to organisations representing children’s rights would unquestionably have informed the [decision-maker]’s decision about the amendments’,Footnote 174 and that ‘[b]y consulting those persons and organisations, the [decision-maker] would have been better equipped to make judgments about how the regulation should be amended’.Footnote 175 He also relied on the liberal democracy-based rationale, arguing that ‘given the range of regulations under review, and the potential impact of the proposed changes across the country, a wider consultation was clearly, in Lord Wilson’s words, “reflective of the democratic principle at the heart of our society”’.Footnote 176 Unlike Lord Reed’s reasoning in Moseley, it is respectfully suggested that Article 39 should also be applicable to Hong Kong law, for the reasoning of the court can be completed even if Baker LJ’s reliance on the liberal democracy-based rationale is removed. Article 39 – together with the contrasting lines of reasoning in Moseley – offer two good examples of how the theoretical conclusions drawn herein can be applied in practice.
Before drawing this analysis to a close, two further points ought to be noted. First, an important implication immediately follows from this analysis: insofar as the Hong Kong legal system does not share the same foundational political theory as that which underpins the English legal system, the Hong Kong law of public consultation will have a narrower scope than its English counterpart.Footnote 177 This difference will likely be immaterial where the duty to consult in question readily engages the informational and/or respect rationales (with respect understood as respect owed to individuals as valued individuals), as it was on the facts of Moseley (per Lord Wilson’s reasoning) and Article 39, respectively. But one can also posit cases in which these rationales are not readily engaged, such that a common law imposition of a duty of consult can only be readily justified by invoking a liberal democratic political theory as a relevant premise in the reasoning process. This may be so where (i) the decision-maker is already in an informed position regarding what the citizens will have to say,Footnote 178 and (ii) the citizens affected have already been given an opportunity to comprehensively express their position to that decision-makerFootnote 179 (eg, if there has already been recent litigation concerning the specific subject matter brought by the citizens in question).Footnote 180 In this regard, not all duties to consult are treated equally; it is possible that particular types of public consultation will be more readily imposed under English administrative law than under Hong Kong administrative law, at least insofar as the Hong Kong legal system does not share the same liberal democratic political theory as that which underlies the English legal system.
Second, a critic may object that even if the Hong Kong legal system does not endorse a liberal democratic political theory (as that which underpins the English legal system), the Hong Kong judges should go beyond the foundational political theory underpinning the Hong Kong legal system and develop Hong Kong administrative law (including for our current purposes, the Hong Kong law of public consultation) by reference to a liberal democratic political theory.Footnote 181 This is too big a theoretical question to be addressed within this article, especially since answering this question satisfactorily will require a more comprehensive discussion of Hong Kong constitutional law than what this article can offer. However, there are at least some strong prima facie reasons for thinking that a difficult hurdle exists for Hong Kong judges to take the critic’s approach. First, the two abovementioned points for why English judges can justifiably tread upon the foundational political theory of the English legal system – in developing the English law of public consultation – will no longer be applicable by analogy to the Hong Kong law of public consultation if the Hong Kong judges were to act as the critic suggests. A distinct justification must be found, and this justification will be (by definition) inconsistent with the foundational political theory underlying the Hong Kong legal system. Second, the principles of common law within the Hong Kong legal system are incorporated through – and are necessarily subject to – the Basic Law itself.Footnote 182 So insofar as the Basic Law prescribes a political theory that underpins the entire Hong Kong legal system, and insofar as that political theory differs from that endorsed by the English legal system, the common law cannot be developed in a way that contravenes this prescription. For ‘[i]n the exercise of their judicial power conferred by the Basic Law, it is the duty of the courts of the Hong Kong Special Administrative Region, as a matter of obligation and not discretion, to enforce … that law [ie, the Basic Law]’.Footnote 183 When these two points are considered together, this seems to create a difficult hurdle for Hong Kong judges to develop the common law principles of administrative law in the way that the critic is suggesting.
Conclusion
This article has set out to answer two questions: assuming that the Hong Kong legal system does not pursue a liberal democratic political theory, (i) what is, or what are, the underlying rationale(s) for the Hong Kong law of public consultation; and (ii) to what extent should the English law of public consultation be applicable to Hong Kong law? These questions are important in light of potential academic arguments that the Hong Kong legal system may not share the same foundational political theory as that which underpins the English legal system,Footnote 184 given that the Hong Kong case law has consistently followed, without qualification, the English law of public consultation.Footnote 185 The article contended that in the event that the Hong Kong legal system is not underpinned by a liberal democratic political theory, (i) the informational rationale and the respect rationale (with respect understood as respect owed to individuals as valued individuals) still justify Hong Kong’s law of public consultation; and (ii) the English law of public consultation can be applied to Hong Kong law, to the extent that the reasoning in question can be completed without relying on a liberal democratic premise. Moseley and Article 39 provide good examples of how these theoretical conclusions can be applied in practice. The overarching conclusion is that Hong Kong administrative law may justifiably retain a law of public consultation. Whilst the English law cases can be helpful for the Hong Kong courts, judges must be acutely aware of the foundational political theory that underlies the English cases on the law of public consultation and be ready to depart from the English law cases when appropriate.Footnote 186
Once more, it bears emphasising that this article has not addressed the all-important constitutional law question of what is the political theory that underpins Hong Kong’s legal system. This question is outside of the scope of this article, and a satisfactory answer to it requires a deeper discussion, alongside all that must be said about the law of public consultation. But the current thesis can still have force and use, even as it remains silent on this question. This is for two reasons. First, as explained above, the thesis at least affords confidence for the Hong Kong courts to follow the English legal position on public consultation when the reasoning in the English cases can be completed without reliance on a liberal democratic premise. If the analysis contained herein is valid, such English cases can be compatibly adopted in Hong Kong law whether or not the Hong Kong and English legal systems share the same foundational political theory.Footnote 187 Second, the thesis provokes a need for the Hong Kong courts to refrain from the existing unquestioning attitude towards following the English law of public consultation.Footnote 188 Whilst, for reasons already given, I disagree with Ho’s assessment that the Hong Kong law has a ‘mere rudimentary public consultation jurisprudence’,Footnote 189 it is true that there is room for further doctrinal and theoretical work in developing the Hong Kong law of public consultation. This article clearly does not offer all the answers in this regard, but it is hoped that the foregoing analysis will provide a helpful theoretical framework and starting point for further investigation in both the academic literature and case law alike.
Acknowledgements
Assistant Professor, Faculty of Law, The University of Hong Kong, Hong Kong, China. I would like to thank Anne Davies and Hasan Dindjer for their time and care in discussing my ideas. I would also like to thank both anonymous reviewers for their time and constructive comments. Any errors are entirely mine.
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