1 Hypothetical Cases

As mentioned previously,⁴¹⁵ in various fields of law, it has been found that legislation is only one of the factors that shape the daily working of legal institutions. Other legal formants – including judicial decisions and background theories – concur in shaping the solutions given for the problems that arise. This is necessarily so in the field of administrative law, because legislation has been less extensive for so long. Moreover, governmental practice plays an important role. As a result, it is necessary to go beyond what used to be called legislation comparée.

The question that concerns us here can be expressed as follows. In two or more legal systems there is a range of goods on which public authorities impose control, because they are potentially risky for some users or they might be controversial from a moral viewpoint, and so on. Those who want to import such goods, therefore, need permission from the competent administrative agency, which is entrusted with the power to allow the importation of controlled goods on the basis of certain criteria. So far, those legal systems may have adopted similar, if not the same, rules notwithstanding their institutional diversity, for example if one is a liberal democracy and another an authoritarian government. But those rules must be enforced, and here lies our problem. In most circumstances, when the agency receives an application for a permit, it will simply look at its precedents and seek to behave accordingly. In other cases, the agency will have to take a decision, which may consist of various factual, legal, and discretionary elements.

Various questions thus arise. If the agency has omitted either to consult a technical body or to give the applicant a possibility to be heard, can it be said that it has acted outside its powers or that it has misused them? If a court of law or other public institution is seized to deal with the legality of the agency’s conduct and decision, as distinct from its correctness, will it take only existing rules into account, or will it apply some judicial doctrine, such as those concerning general principles of law? It is for this reason that various administrative scholars at different times have called for greater attention to empirical research.⁴¹⁶ Others have argued that this type of research, ‘focusing on specific legal situations’, might be particularly helpful for comparative purposes.⁴¹⁷ The discussion that follows focuses on four procedural requirements concerning administrative adjudication,⁴¹⁸ while rulemaking will be examined in the following chapter. These requirements are freedom from bias, the right to be heard, the duty to give reasons, and the duty to consult.

2 Freedom from Bias

The maxim nemo judex in causa sua (or in re sua) expresses the principle that no person can judge a case in which he or she has an interest. Thus intended, such prohibition is very old. As a precept of Roman law, it was codified in the Code of Justinian (529).⁴¹⁹ In English law, it was applied in the famous Dr. Bonham’s Case: the Court of Common Pleas, presided by Coke, ruled against the College of Physicians, holding that “the Censors cannot be judges, ministers, and parties; judges to give … judgment; ministers to make summons; and parties to have … the forfeiture”.⁴²⁰ The same rationale underlies James Madison’s assertion in Federalist No. 10 that “no man is allowed to be a judge in his own case” and the decision of the Conseil d’État according to which no judge can pronounce a judgment on an earlier decision which he has contributed to adopt.⁴²¹ In our epoch, freedom from bias is one of the main instruments to uphold standards in judicial life. It is established by several modern constitutions and codes of civil and criminal procedure. It is defined by both universal and regional charters of rights, such as Article 6 echr, which requires “an independent and impartial tribunal, established by law”, and the Strasbourg Court has clarified that it applies to public law disputes such as those concerning judicial offices.⁴²² However, freedom from bias can be intended in more than one way. Within the same legal order in some cases the principle is very strictly applied to any appearance of a possible bias, in the sense that “justice must not only be done, but must be seen to be done”,⁴²³ while in others evidence of bias, or at least of a real danger, is required. There are also variations across different legal orders concerning the infringement of the principle, because in some cases any breach of the principle renders the judgment invalid, while in others the case may be remitted.

Differences emerge also with regard to administrative adjudication. As a matter of principle, an independent adjudicator is regarded as an essential requirement of procedural justice. In the UK, it is one of the fundamental maxims of natural justice. Elsewhere, written constitutions – including those of Italy and Spain-⁴²⁴ define a general principle of impartiality of administrative action. In still other continental legal systems, the principle is established either by general legislation governing administrative procedure or by the courts. Thus, for example, in France, the principle was affirmed by the Conseil d’État in 1949, when it dealt with some cases concerning the previous regime of Vichy. It was later codified by the Code governing the relationship between public administrations and citizens, which requires the former to pursue the general interest and to respect the duty of neutrality.⁴²⁵ Other apas, such as the Swedish one, reinforce impartiality by requiring all persons who are disqualified, either on personal grounds or because their impartiality may be questioned, to abstain from participating when the matter is discussed, but there is an exception if “it is obvious that the question of impartiality is of no importance”.⁴²⁶ Similarly, in Switzerland the government officer who elaborates a decision must abstain if he or she may give the impression to have a bias. More generally, the question that arises is whether the principle applies in the same manner to administrative agencies and courts. In some legal systems, the prohibition of bias is intended rigorously especially when a government officer has either any personal or financial interest in the outcome of a certain procedure (planning permissions provide, again, an instructive example) or when he has any personal animosity or prejudice towards an individual or a group. Within the research team, therefore, it was thought that the aspect of bias or prejudice against a group or category of individuals could provide an interesting terrain for testing whether the principle of freedom from bias governs administrative procedure and, that being the case, whether the threshold differs from that which concerns the judicial function.

In our hypothetical case, we suppose that Fatima is a Sudanese national who fled away from her country in order to save her life and entered illegally into a European country that has signed several international treaties imposing duties of assistance and asylum to those who escape from wars, civil wars, and revolutions. When she applies for asylum, her request is rejected by a three-members board, presided by a man who often gives interviews to newspapers alleging that the board’s role is to stop the invasion of African migrants, whatever their reasons for seeking asylum. Fatima contests the rejection of her request before the competent court, holding that the president had a clear bias, that he influenced the whole procedure and the final decision should be annulled. The board objects that there is no provision, in the legislative framework that established the board and the asylum procedure, which obliges its members to refrain from expressing their thoughts outside the official procedure. Nor is there any provision obliging them to abstain from taking part in any decision after so doing. Two questions thus arise. The first is whether the legal systems define a general principle against bias, which in our case is not of a specific type, in the sense the adjudicator has a monetary or personal interest, but is of the type which is often referred to as ‘prejudice’. The second is whether any infringement of such principle would lead to the annulment of the contested decision. This is, in some sense, an ‘extreme’ consequence, as it implies that any deviation from the standard would imply the annullability of the individual decision.

National reports show more than a difference concerning administrative procedure and judicial mechanisms. Most legal systems have adopted sector specific rules governing the asylum procedure. Thus, for example, France has a “Code for the entry and residence of foreigners and the right to asylum” since 2005. Sector specific rules are, however, variably interpreted in light of general principles, such as those established by Articles 6 and 10 echr, as well as by administrative procedure legislation, for example in Italy and Switzerland. Moreover, in the majority of the legal systems examined the courts may only annul an unlawful decision, while in others – such as Austria – they could replace the board’s decision.

That said, there are three ways in which our hypothetical case would be handled. The first, which is exemplified by the UK, is to hold that the president’s public pronouncements show his apparent or actual bias, thus tainting and discrediting the entire decision-making process. There are two sides of the coin. One is the common law test for “apparent bias”, through which the reviewing court must consider whether an informed observer, having considered the relevant fact, would conclude that there was a real possibility that the panel’s president was biased.⁴²⁷ In this case not only is the appearance of bias reinforced by its racial dimension, but Fatima might even be able to argue that the decision was affected by actual, rather than apparent, bias.⁴²⁸ The other side of the coin concerns statutory law. It cannot be excluded that Parliament intends to derogate from common law principles, including the rule against bias, but such intent should be expressly declared, which is not the case. Interestingly, the jurisprudence of French and Italian administrative courts would reach a very similar conclusion, in the sense that the prohibition to publicly express ideas that would be prejudicial to the proper exercise of authority is deduced from the principle of impartiality. Outside the EU, Serbian courts, too, would be most likely to enforce the obligation to refrain from taking part in a procedure if there facts which raise doubts about impartiality.

The second way in which Fatima’s claim could be considered is exemplified by the German legal framework. The interviews with newspapers and other public pronouncements would not justify, in themselves, the annulment of the contested decision. They would be regarded as justifying a suspect of partiality. The bottom line is the general principle according to which procedural weaknesses invalidate an administrative decision only if they influence its content. The same conclusion would be reached, among others, by Austrian, Greek, and Romanian courts. Austrian courts would not hesitate, though, to hold that a statement expressing fear of an “invasion of African migrants” raises a reasonable doubt about the board president’s bias. Another similarity between Austria and Germany is that the freedom of speech of government officers under Article 10 echr would be recognized. However, its exercise is subject to conditions, including the obligation to abstain from cases in which the decision taken by the public authority may be influenced by personal or political opinions. Failure to respect such conditions would inevitably affect the validity of the final decision, which would be annulled.

The Spanish legal system provides an example of a third solution. As observed earlier, the Constitution defines a general principle of impartiality and objectivity, which is reinforced by the prohibition of bias on grounds, among other things, of race and other personal or social conditions. However, an apparent bias would not suffice to set aside the contested decision. The connection with Fatima’s case should be demonstrated. Moreover, as the decision is taken by a board, it is necessary to show that the president’s public pronouncement, regardless of their inopportunity, have actually influenced the decision. As a result, even though administrators are required to act impartially, the courts would be unlikely to set aside that decision on the sole grounds that the president has made those pronouncement, though they would be very likely to give raise to a disciplinary procedure.

It may be helpful to relate the hypothetical case to one of the main themes of this book; notably the importance of standards of good administrative conduct, also in light of the values recognized and protected by supranational legal orders, including dignity, freedom, respect for the rule of law and fundamental rights. While in other cases the countervailing interests of public bodies, including order and security, would be weighed in balance by the courts, this is not the case when the impartiality of the adjudicator is at stake. The individual’s interest to an unbiased adjudicator trumps even the latter’s freedom of thought. The underlying rationale is that it is inappropriate for the member of a board – a fortiori for its president – to make assertions that are racially connotated concerning the administrative decisions to be taken. Although the various legal systems give different weight to apparent bias, if the courts find that the rejection of the request of asylum is influenced by prejudice, they will either quash it or vary the administrative authority’s decision.

This common ground is strengthened by both the echr and by EU law. Under Article 13 echr, states are required to independently and rigorously examine claims that the applicants’ right to life and to be subject to torture (protected by Articles 2 and 3) would be jeopardized upon return. Since T.I. v. the UK and Jabari v. Turkey, two case decided in 2000, the trend has been very much in the direction of excluding any form of arbitrariness in the handling of asylum procedures.⁴²⁹ While leaving a certain margin of appreciation to the States, more recent rulings hold that procedural weaknesses, such as an excessively short time-limit for filing an application and for appealing against a removal decision, may render the procedure ineffective and thus in breach of Article 13.⁴³⁰ Within the more limited scope of EU law, national authorities are required to take decision “objectively and impartially” and it is for this purpose that reasons must be given if the decision has unfavorable effects for the applicant.⁴³¹ These standards are interpreted by the Court of Justice as preventing national authorities from adopting measures based on general considerations, without any specific assessment of the conduct of the person concerned.⁴³²

3 The Unfair Dismissal of a Civil Servant

Public employment is of particular importance for procedural protection also in another respect; that is, administrative due process of law. Traditionally, the dividing line is between the area of what is regarded by the law as an office and the area of politically appointed employees. However, the legal relevance of that stark division should not be overestimated, especially from the viewpoint of a traditional power of the State, that of punishing officials’ misconduct (ius puniendi) by suspension and dismissal. This justifies Wade’s remark that if there is an administrative power that requires an impartial decision-maker and a fair procedure, it is precisely the disciplinary one.⁴³³ This is, therefore, a type of case that is likely to generate interest across national borders, as happened in the British Commonwealth after the House of Lords’ ruling in Ridge v. Baldwin.⁴³⁴ There is still another element of interest, the possibility of invoking the application of Article 6 echr.⁴³⁵ However, the content of procedural protections and the intensity with which their respect is ensured by the courts varies from an area to another. In other words, procedural requirements depend upon the facts of the particular case.

In our hypothetical case, a police officer, Alvin, receives notice of the commencement of a disciplinary procedure for his alleged professional misconduct (ie, related to his office). However, when he asks for legal representation, the officials who conduct the hearing do not allow him to be accompanied by a lawyer on the grounds that this is not required by existing regulations and would make the procedure longer than necessary. Alvin thus defends himself during the hearing. A few days later, the Police Department issues a disciplinary penalty suspending Alvin from service for six months without salary. He then challenges the disciplinary sanction before the competent court, arguing that the hearing was unfair because the refusal to admit legal representation did not allow him to fully show the insufficiency of the evidence against him, and that, when such unfairness occurs, the courts must provide a remedy to redress the consequences. The issues that thus arise are, first, whether the court would give weight to the arguments based on due process of law, notwithstanding the absence of express rules and, if so, whether it would be willing to quash the challenged measure.⁴³⁶

The answers given by experts to the hypothetical case reveal significant differences. They concern the rules governing the exercise of disciplinary powers, some procedural aspects, and the nature of the court that adjudicates the official’s complaint. There is a complex relationship between general and sector-specific rules, which are sometimes particularly detailed. Trade unions have varying possibilities to impose adjustments to the rules adopted by public authorities. In some legal systems, the disciplinary procedure is preceded by either mediation or conciliation. The deadlines for completing the procedure are more or less stringent. While in some legal systems the dismissal must be challenged before the ordinary courts, in others, there are specialized administrative courts. Whatever their nature, some courts would be likely to consider whether legal representation would make the whole procedure unnecessarily long and complex. Others would distinguish between suspension and dismissal and would take a hard look at respect for procedural safeguards only in the latter case.

There is, however, an area of agreement between the legal systems considered. The disciplinary procedure everywhere has a pre-established pattern that must be followed. It begins with the issuing of the notice, it continues with the relevant facts being gathered, and proceeds to the hearing; it comes to an end with the final decision, which must be notified. Moreover, the courts take procedural safeguards seriously, as the following findings show. Powers must be exercised with reasonable care. The right to be heard is recognized and protected. Even the legal systems where there is no general requirement of an oral hearing provide it when an official may be subject to suspension or dismissal. A record of the hearing must be elaborated and kept. Technical assistance is granted, either through lawyers or through experts working in trade unions. There is yet another safeguard concerning the final decision: it must be reasoned. All legal systems, therefore, conform to the maxim audi alteram partem, in the strict sense, as well as to the giving-reasons requirement.

This is another example of the judicial development of general principles common to the legal systems of the member States. It is reinforced by the Court’s holding that this principle ‘meets the requirements of sound justice and good administration’, a language that echoes that of Austrian and Italian administrative courts in the last decades of the nineteenth century. Of course, nothing in the above implies that other European legal systems, in other moments of their development, will necessarily endorse the reasoning of the ecj. Moreover, the national courts’ reasoning would differ as to whether it would put the emphasis on instrumental rationales, as opposed to non-instrumental ones, such as those based on dignity. National legal cultures and judicial doctrines would thus be of importance. However, Article 6 echr, too, would play an important role. Where the outcome of disciplinary procedure would lead to dismissal and thus exclude an employee from the chosen professional area (unlike other jobs which can be found both in the public and private sectors, such as the medical profession), this could trigger Article 6. This is confirmed in the case law of the European Court of Human Rights, according to which the States – ‘in their function as guardians of the public interest’ – retain discretionary powers as to the maintenance or establishment of a distinction between criminal proceedings, which are always subject to Article 6, and disciplinary procedures, but only subject to certain conditions, so as to exclude results incompatible with the Convention.⁴⁴⁰

4 A License Revocation Inaudita Altera Parte

While a disciplinary procedure such as the one just examined concerns action internal to public authorities and gives rise to the exercise of power without any prior decision, in other cases their action produces external effects on individuals, social groups, and legal entities. This is the case, among others, with expropriations and sanctions, as well as with authorizations and licenses. The latter have become increasingly important within that are of government authority initially known as police power and has, in recent years, come to be called ‘regulation’. The effects of licenses differ, as occupational licenses imply restraint on the freedom of individuals to pursue their chosen professions, while others allow individuals to use public resources. The classic example is concessions for the individual use of a part of the public domain, such as a beach or waterfront. These measures give rise to the problem of balancing individual and collective interests not only when they are issued for the first time but also when they are modified or terminated. While public welfare may require a summary revocation of the various licenses, the interests of the licensees demand impartial and accurate consideration: may the licensing authority take only public welfare into account, or must it accord the licensees the safeguards of notice, an opportunity to be heard, and the benefit of reasons?

There is more than one reason why this question has become of growing interest from the comparative perspective. One aspect concerns the individual’s legal position. Is the licensee’s interest considered a privilege, which in some legal systems (for example, in the US) is traditionally distinct from a right and therefore not eligible for the procedural protections associated with rights? Another aspect is whether issuing a license should be distinguished from renewal or revocation as licensees should enjoy greater protection in the latter scenario. It was in a case of this type that the French Conseil d’État explicitly enounced for the first time its doctrine of the general principles of law,⁴⁴¹ a case which was cited with approval by Wade to show that similar problems arose on both sides of the Channel and that French administrative courts had ‘striven to raise the control of administration’.⁴⁴² Moreover, a revocation of the unlawful administrative measures granting economic benefits to the servants of the ecsc was at the heart of the ecj ruling in Algera.

Our hypothetical case comes very close to the French case just mentioned, which regarded a license for selling newspapers and maps at a kiosk. We suppose that Mrs Tramp has a license for selling certain products for those who practice sports, which are not reserved to pharmacies. One day the licensing authority decides to withdraw her license because it intends to renew the offer of such services (without any charge of misconduct), but without giving her any opportunity to be heard. The licensee thus challenges the revocation before a court of law, arguing that the decision was taken in breach of duties of fairness and rationality in decision-making, and asks the court to annul it. While the licensing authority objects that no procedural due process is owed to the licensee, would the court contest unfairness and breach of rationality? In either case, would Mrs Tramp’s action be successful? In other words, the hypothesis we seek to test is not so much whether, where a statute or municipal ordinance authorizes the withdrawal of licenses and specifies that notice and hearing to the licensee are requisites for the exercise of the administration’s power, but whether compliance to these conditions is essential for a valid revocation. The difficulty arises where the statute or ordinance is silent on the subject of notice and hearing, as well as on the reasons to be given.

On one initial proposition there is an area of agreement between the legal systems included in our comparison; that is, the licensee has a sufficient interest to seek to obtain judicial protection. But, after this, the courts fall into disagreement as to the nature of the interest that is recognized and protected by the legal order. There is disagreement also as to whether the renewal and revocation of licenses are governed by sector-specific legislative rules, as distinct from those of general legislation on administrative procedure, as happens, for example, in Germany, Italy, and nowadays in France. The general rules differ, moreover, as the ecj observed in Algera, with regard the time limit within which the revocation may be decided. Last but not least, the courts disagree as to the breadth of the discretionary power exercised by the licensing authority since policy or standards must sometimes be defined beforehand, an issue we will return to in the next chapter, when discussing regulation.

This area of divergence, however, coexists with an area of agreement. While in earlier periods some courts sustained revocation without notice or hearing afforded to the licensee, the decisions assuming the converse position with regard to the process rights related to a license have become the rule rather than the exception. In all legal systems the licensee’s interest to carry out a lawful business is regarded as a valuable interest, recognized and protected by the legal order. This entails a twofold consequence. Although public authorities are entrusted with discretionary powers, these can be exercised only in view of all the relevant facts of the particular case. Thus, to offer an example that differs from our case, if the revocation of a license is alleged to be the consequence of the violation of legislative or regulatory provisions, there must be evidence supporting such an allegation. Moreover, the license cannot be revoked without notice and a hearing relating to the licensee. She must be granted access to the preliminary investigations and assessments that induced the licensing authority to commence the procedure, and she must be allowed to present documents and evidence supporting the request that it desist from revoking the license. If it eventually revokes the license, it must give reasons. If it fails to do, and more generally in order to respect procedural requirements, it exposes itself to a twofold risk; that is, its decision may be annulled (in the UK, the licensee may also obtain a remedy by mandamus against arbitrary exercise of authority) and the authority may be held liable for damages. In many legal systems – including those of Hungary, Poland, and Romania – when the courts receive claims challenging the revocation of licenses without notice and comment or without reasons, they simply assert that the procedure infringes the principles of fair administrative procedure, and the revocation is, therefore, invalid.

Once again, the existence of a common standard is confirmed from both the substantive and procedural viewpoints by the case law of the European Court of Human Rights. The Court took into consideration the right or interest related to a business license and reached the conclusion that it constitutes ‘possession’ for the purposes of the protection of property under Article 1 of Protocol No 1 to the echr.⁴⁴³ Procedurally, although the Court recognizes that national authorities have a wide margin of appreciation, one of the cases in which it has found no public interest justifying interference with such a right or interest is precisely the annulment or revocation of a license to run a business without any of the reasons relied on by the authorities in the relevant decision.⁴⁴⁴

Outside this area of agreement, other differences re-emerge. Thus, for example, in some legal systems it is affirmed that the holder should not be deprived of the license without being offered an opportunity, with timely notice, to defend it. Conversely, in other legal systems, the infringement of procedural requirements could be justified if an overriding public interest so requires, which however cannot be simply asserted but must be justified. There are yet other legal systems where time is particularly relevant as the licensee’s legitimate expectation to be able to continue her business enjoys greater protection considering the time passed since the license was issued. Lastly, our hypothetical case must be distinguished from the circumstance in which a licensing authority decides, as a matter of policy, to revoke all existing licenses, as opposed to a particular one. If individuals seek judicial review of the decisions affecting their interests, they would probably rule that action under the policy was a proper exercise of discretion, though other procedural requirements would apply.⁴⁴⁵ In conclusion, a public authority must respect procedural requirements, but these are understood and applied in a flexible manner.

5 Administrative Detention without Reasons

Thus far, we have considered rights relating to businesses, including the deprivation of office and the revocation of licences. But procedural requirements are often invoked also with regard to individual freedom. There is one kind of case concerning detainees subjected to administrative measures that would result in a loss of liberty without a fair hearing, and there is another line of cases regarding suspected terrorists. This is an area of public law which has become increasingly important and, at the same time, controversial. On the one hand, especially after 2001, national authorities have widely exercised their traditional powers over persons, including the freezing of funds and the deportation of persons where this is said to be conducive to the public good. They have occasionally asserted that they are not bound to grant a hearing or give reasons prior to adopting a deportation order. On the other hand, after some hesitations, national and supranational courts have reacted against what was perceived as a total disregard of due process of law. The Kadi ruling of the ecj is perhaps the best known of these cases.⁴⁴⁶ The questions that arise in this respect include whether the absence of a right to enter, and stay in, a country implies the absence of procedural protections, and – as has been observed with regard to the revocation of licenses – whether a person whose permit is revoked should have greater procedural protection than one who applies for asylum for the first time.⁴⁴⁷

To discuss these issues, we imagined a somewhat ‘extreme’ hypothetical case, as we will explain later. We suppose that a non-European citizen, Fatima, enters a European country legally and obtains a permit of stay for three months, renewable for a maximum of six years, for study reasons. However, on the basis of information gathered by the host country’s Department of Internal Affairs, the Minister finds that she poses a threat to national security and prohibits her to leave the house where she resides for three months, a measure that is provided for in national legislation in cases where national security is under serious threat. The Minister’s order simply says

whereas I have reasonable cause to believe that Fatima to be a person of hostile association and by reason thereof it is necessary to exercise control over her, by prohibiting her to leave the flat where she leaves for the next ninety days.

Fatima brings an action against the order claiming that it does not state the grounds for the decision and is unreasonable. The Minister responds that, unless a particular legislative provision so prescribes, there is no need to disclose the basis for his decision and that his actions are not justiciable in a court of law. The questions that thus arise are whether the court would endorse the Minister’s response and treat the action as non-justiciable and, if not, whether it would be willing to side with Fatima on the merits, particularly as regards procedural protections.

Once again, there is disagreement among the legal systems examined in more than one respect. There are different divisions of power between central and local authorities, such as those of the prefects in France and Italy. There are also different degrees of detail in legislative provisions governing the exercise of administrative power. Moreover, there are different scopes of judicial review against measures such as administrative detention. Thus, for example, in the UK, the norms governing the issuing of control orders under anti-terrorism legislation provide for limited rights of appeal, which has often been contested by the courts. Elsewhere, for example in Belgium and Hungary, there is a pronounced judicial deference vis-à-vis the executive determination that ‘national security is under serious threat’. In countries that adhere to the echr, aliens have a right to obtain judicial review, including the use of interim measures if necessary. Before national courts, in the majority of cases, an administrative act without reasons would most probably be regarded as annullable, while in others – including Italy and Spain – it might be regarded as null. Lastly, in some legal systems, notably Germany, the court would probably give the executive the possibility to State its reasons before the end of the judicial trial. In others, this would be regarded as a posthumous statement of reasons in contrast with the principle of effective judicial protection, as the claimant would not be able to understand the reasons on which the order is based and, therefore, to establish the grounds for appealing against it. Perhaps the strongest criticism has been expressed by Lord Stein, according to whom

a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole-in-the-corner decisions or knock on doors in the early hours.⁴⁴⁸

The diversity in the ways the rule of law is understood is thus confirmed.

That said, a significant area of agreement between those legal systems has emerged. It concerns three requirements. The first is the necessity to respect the pre-established procedure. This requirement is reinforced by supranational norms, namely EU directives for its member States, and the echr for the rest of Europe. Article 5 echr recognizes the States’ discretionary power to restrict the freedom of foreigners, with a view to deportation or extradition. However, this power is not unlimited. It must be exercised in compliance with ‘a procedure prescribed by law’. As a second requirement, discretion cannot subside into arbitrariness or unreasonableness. It is precisely because administrative authority is neither unbounded nor permitted to be exercised unreasonably that it is subject to the duty to assess all relevant facts, in order to justify its action. Thirdly, there is a requirement to provide reasons, which requires one or two words of explanation. We have already seen, in Chapter 6, that this requirement, which previously applied only to judicial decisions as opposed to legislation and administration, is nowadays a general feature – a sort of invariant – of administrative procedure legislation in its essence, ie, when an administrative decision adversely affects the individual’s rights or deviates from existing rules.⁴⁴⁹ A distinction can be made between the two rationales that underlie the duty to give reasons, either non-instrumental (that is, dignity) or instrumental (good administration). But, ultimately, at the root of this duty lies a conception of authority that must not be taken as a synonym of power, let alone of force. In fact, it implies a particular kind of power: that which is justified or ‘rightful’. The whole idea of justification refers to the issue of why people accept authority.⁴⁵⁰

In this sense, our hypothetical case is ‘extreme’ because of the absence of any specific reason except the stereotyped assertion that an administrative measure is required by national security. Since there is no indication that Fatima poses a serious threat to public security, the requirement to give reasons is infringed because there is no justification for the power that is exercised. Accordingly, the courts would allow the appeal and annul the order. Whether administrative detention – as suggested by some national reports – might also be vitiated by unjustified discrimination against a particular ethnic group or nationality is another possibility which deserves treatment on its own. Lastly, it may be interesting to add that the three requirements mentioned just now are not exclusive to Europe but are shared in another region of the world: Latin America.⁴⁵¹

6 Consultation: The Role of Experts

The fact that the total absence of reasons, or at least of any reason bearing on the specific facts of the case, constitutes an extreme scenario suggests that less extreme circumstances should be considered in order to have a better understanding of the area of agreement between legal systems. It might therefore be helpful to test the commonality and diversity among these legal systems from another point of view, distinct and distant from the traditional requirements of natural justice and, at the same time, close to the reality of the daily business of government, ie, consulting with technical bodies. These bodies have multiplied rapidly during the last century. They are used widely for administrative functions and differ according to the nature of the problem they are called upon to examine. In areas of scientific uncertainty, they will, for example, be called upon to assess the level of risk posed by a certain substance in the environment (for instance, the chemicals that can be used in a gold mine) or its effect on human beings (eg, in relation to the approval of a new pharmaceutical product). In other cases, there might not be a problem of imperfect information, but there will be diverse views about the impact of a factory on the landscape. There is diversity, moreover, as to the terms under which these bodies are consulted (a duty may be established by legislative or regulatory provisions, but a public authority may decide to consult before adopting a certain decision) and their effects, which can be more or less binding.

In our hypothetical case, we suppose that legislation has established that certain buildings that are particularly important for artistic or historical reasons are protected. They are included in a list. A listed building may not be altered or demolished without special permission from the local planning authority, which must consult the relevant central government’s technical committee. This is the case of an old castle. When receiving the application for prior approval sent by a private corporation that has bought the castle and intends to alter it for use as a hotel, the local municipality makes its decision without consulting the competent technical committee. The municipality decides that the application cannot be approved, except for some very limited parts. As this decision adversely affects the interests of the private corporation, it brings an action before the courts on the ground that the procedure established by law was not respected, and this did not allow an adequate understanding of either the facts or the interests involved. The question that thus arises is not only whether the court would endorse this argument, but also whether it would be willing to quash the contested decision.

Our case thus differs from what is perhaps the most frequent situation, in which local authorities fail to consult experts before deciding because they wish to grant the permit on the assumption that this will promote the creation of new jobs and increase local revenues. Anyone seeking simple answers might be disappointed. There is great diversity concerning both substantive and procedural aspects of the legal protection accorded to such buildings. The substantive rules have changed throughout the years, most notably in the countries of Central and Eastern Europe, such as Hungary. They differ in part even within the same legal order, notably in the UK. Administrative functions and powers are divided, in various ways, between central and local authorities, with the result that sometimes – notably in Spain – two distinct procedures must be carried out. Furthermore, in some legal systems, the rules governing protected buildings provide that technical bodies must be consulted only when the owner of a protected building intends to destroy it, while in others the duty to consult is generalized, and the opinion of technical bodies is binding to different degrees. Lastly, the type of review which would be carried out by the courts is also variable. Thus, for example, in Austria the administrative court would consult the central government advisory board and consider its technical assessment of the facts before handing down a judgment,⁴⁵² while in Germany the administrative court would not quash the contested decision if the procedural error is remedied before the end of the judicial proceeding.⁴⁵³

For a better understanding of this case, it is important to bear in mind the differences between it and the previous ones. What is at stake is not one of the traditional requirements of due process – the unbiased adjudicator and audi alteram partem – but the duty to consult an advisory body. The very existence of such a duty in the various legal systems examined here is both relevant a significant. It confirms that there is a shared concern for both fairness and propriety. The legal consequences of failure to consult, however, remains to be clarified. The stringency with which the courts have exercised judicial review has varied in different countries and over different periods of time. In more than one legal system, there has been an unwillingness to declare administrative decisions invalid simply because the applicant could point to one relevant element of fact that the authority had not taken into account. Moreover, legislative provisions – for example in Germany – establish that not all procedural infringements constitute illegalities and do not, therefore, lead to invalidity.

It is precisely because of this differentiated legislative and judicial approach to the infringement of procedural duties that it is interesting to see how failure to consult is treated. Thus, for example, the Belgian Conseil d’État has held that consultations with the Commission, which must deliver advice on projects that intend to transform protected buildings, constitutes an ‘essential formality’.⁴⁵⁴ Elsewhere, for example in Hungary, there is a distinction between absolute and relative procedural errors, but the underlying idea changes little. There are, however, two underlying rationales. One is that this is a legally established duty and should not, therefore be conceived as a mere formality. Following this line of reasoning, in the Lithuanian legal order for instance, the duty to consult is associated with the principle of legality. The other rationale is that technical expertise is essential for an accurate and objective decision-making process. People may well disagree as to whether, for example, a certain building deserves to be protected, among other things, using public money. This is a discretionary decision. But it is another thing to ascertain whether a certain building possess the characteristics to be included in the list of protected buildings, as well which characteristics do not alter the essence of such characteristics. In this respect, the intensity of judicial review – for example, in France, Italy, and Spain – would be minimal, because the courts defer to the assessment of those characteristics made by experts, with the exception of deviations from existing criteria. By contrast, an alleged failure to consult is subject to more intense scrutiny and would give rise to the annulment of the contested decision.

7 An Area of Agreement

The procedural requirements imposed on public authorities discharging administrative functions and powers have formed the subject of this chapter, and we have touched upon some of the problems regarding the exercise of these powers, focusing in particular on adjudication.

The main point that emerges from our comparative analysis is that, although there is no inflexible principle whereby any infringement of procedural requirements gives rise to invalidity, any breach will normally be taken into account by the courts in the light of the general principles of legality, non-arbitrariness, due process, and transparency. This is not to say that the system of review has become unproblematic. There have been new problems resulting from an excessive demand for procedural justice. Moreover, both EU law and the echr have exerted a growing influence. The point being made here, however, is more general. In the field of administrative adjudication, the hypothesis at the basis of this essay can be said to have been confirmed. In brief, there is indeed a common core.

It remains to be seen whether a similar conclusion or a different one may be reached with regard to rulemaking.