This website uses cookies to ensure you get the best experience on our website. Learn more

BCL Law Notes Comparative Public Law Notes

Process Notes

Updated Process Notes

Comparative Public Law Notes

Comparative Public Law

Approximately 465 pages

A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Comparative Public Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Lecture 2: Process

EU UK

Sources of process rights

  • Lisbon Treaty (TEU + TFEU)

    • Duty to give reasons: art 296

    • Publication

    • Access to documents

  • EU legislation – sector-specific procedural codes for particular area

    • Eg competition law; State aid law (States supporting domestic industries)

      • Big business – large commercial interests at stake and so procedural rules imposed

  • Caselaw

    • “General principles” of law fashioned by Courts read into treaty

      • Similar to reasoning of common law courts

    • Eg

      • Right to hearing/right to defence – elevated to fundamental right in Al-Jubail

  • Set of model rules for procedure currently being put together by group of academics

    • No formal status but are being considered by EU Parliament

    • Referred to by EU Ombudsman

  • Common law from 17th century onwards

    • Modified ultra vires v common law theories

  • Limited statute

    • Horizontal – dealing with particular process right across different administrative bodies – eg duties to give reasons in Tribunals Act 2007 (setting up first-instance and upper tribunals)

    • Vertical – code of procedure for particular type of decision-making

      • In primary or secondary legislation

      • First-instance tribunals are subject-matter specific (immigration, welfare, etc)

      • Given greater coherence post-2007

  • ECHR art 6 as implemented by HRA (enshrining right to fair trial, incl that decision-making be undertaken by independent & impartial tribunal)

    • That requirement already existing at common law but has become more developed

  • EU General Principles of law binding when implementing EU law – where domestic body implementing
Rationale

  • Not markedly different from UK

  • Two rationales

    • Instrumental rationale: more likely to reach correct conclusion on substance of case

      • Tends to endanger rights to extent of limitation of resources

    • Non-instrumental: independently of instrumental justification, contrary to human dignity to refuse procedural fairness: avoid Kafkaesque trials

  • Similar instrumental & non-instrumental rationales to EU

  • Judges more openly reflect on underlying rationale – even if not in terms

  • Generally don’t err towards pure instrumental law & economics reasoning – if hearing wouldn’t have make a difference to outcome, don’t give hearing

    • Even from instrumental perspective – impossible to know

Trigger/applicability

Depends on the source.

  • Treaty treaty article will provide trigger

    • Eg duty to give reasons – applies to every form of action taken by Community: incl primary, secondary legislation (eg EMs) & individual decisions

    • Duty to publish – applicable to every Act

    • Access to documents – less extensive

  • Legislation triggered by subject matter involved

    • Eg Procedural code for competition applies in competition cases

    • Courts often add to process rights where legislative process insufficient

      • Ie “general principles of law” not excluded by omission in legislation—because sits above it in hierarchy of norms

  • Caselaw (“general principles of law”) adjudication process rights –

    • Test unclear—

      • Adverse impact (English language version); or additionally

      • That measure be directed at the plaintiff (French language version)

    • Broader test favoured

      • Tendency towards adverse impact test in caselaw

      • “directed at plaintiff” given a broad meaning

  • Must show some right, interest or legitimate expectation justifying some process rights

  • General approach is for liberal interpretation of rights, interests falling short of rights, and of legitimate expectation

  • Legitimate expectation – eg

    • Where clear & unequivocal representation without which interest would not warrant protection – representation provides foundation: AG of HK v Ng Yuen Shiu (alien entered territory illegally – government announced illegal immigrants would be interviewed protected but would not have been without unequivocal representation)

Content of Process Rights

  • Legislation setting out code set out in the Code

    • Can be supplemented by general principles

  • Treaty / general principles of law determined by the Court

    • Rules vary according to subject-matter

      • Eg duty to give reasons applies differentially depending on nature of exercise of power – legislation v individual administrative action

    • Implicit (not explicit) balancing exercise

      • Similar to explicit balancing exercise to determine US Constitutional due process rights to be accorded: Matthews v Eldridge (1984, US)

      • Importance of interest infringed

      • Likely value of additional process right claimed, in light of process rights actually given

      • Cost to administration (not limited to financial cost)

    • Balancing typically conducted in a more micro way

      • Eg right to access to file – where file enormous will take into account, without acknowledging that having regard to generally applicable consideration of cost

  • Proposal in EU for closed material proceedings without a special advocate – Court to take more active inquisitorial role

    • Sounds tenuous – but a lot of judges coming from continental legal systems where accustomed to inquisitorial adjudication;

    • Court has favourable history of granting process rights

  • Appears to reflect balancing exercise in Matthews v Elridge (US):

    • Importance of interest infringed

    • Likely value of additional process right claimed in reducing risk of error, in light of process rights actually given

    • Cost to administration (not limited to financial cost)

  • No seminal case that sets out that balancing calculus with such precision

  • Qualification to balancing method:

    • Core rights cannot be removed by ‘balancing’: Lord Denning – if the right to be heard is to be worth anything, it must carry a right to know the case made against an accused

      • AF (2010) HL (control orders on basis that reasonable grounds to suspect terrorist activity, involvement, etc – judge relied on undisclosed evidence read down Prevention of Terrorism Act to be...

Buy the full version of these notes or essay plans and more in our Comparative Public Law Notes.

More Comparative Public Law Samples