Northern Ireland Reply

Northern Ireland Reply

PART 1

Do the rights granted by the Charter of Fundamental rights of the EU lead us to a common European procedure before the administration and the administrative courts ?

General questions
To what extent do you apply EU law ?
To some extent
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
To some extent . This is a reflection of the doctrine of supremacy of EU law.
Can you give examples if appropriate ?
This has occurred particularly in the realms of employment law, environmental protection law and sex discrimination law.

Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Yes . It is always open to the court, in every case, to proactively raise issues of EU law. At the practical level, the judge would inform the parties and they would have an opportunity to present arguments and/or appropriate evidence. This is a reflection of the judicial function and the doctrine of supremacy of EU law.

Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
1. Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
In Northern Ireland/the United Kingdom, this could not be described as an absolute right. There is no constitutional provision to this effect, nor is there any general statutory right of this kind. In specific contexts, a statutory right may exist. In cases not prescribed by statute, this issue is governed by common law principles – specifically, the principles of natural justice (now known as procedural justice, or procedural fairness). A right to be heard may also arise under the guise of ECHR rights – in particular Article 6 and sometimes Article 8 – pursuant to the Human Rights Act 1998.
Where this right exists its content is variable from case to case. In some cases, it may simply be a right to be consulted in advance. In others, it may consist of a right to a full public hearing/judicial trial.
2 If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
See reply to question 1. In those cases where the right exists, the relevant public authority/administration must be proactive in ensuring that it is fully respected.

41.2.b The right of every person to have access to his or her file
3. Is this right guaranteed in the administrative procedural law in your country ?
There are two relevant statutes. The Freedom of Information Act 2000 confers on every person (a) a right to be informed in writing by a public authority whether it holds information of the description specified in the request and (b) a right to have any such information communicated to the citizen. Under the Data Protection Act 1998, every person has a right to be informed whether personal data relating to such person is held and a right to have such data communicated to him/her. Under both statutes, there are specified exceptions to these rights – national security, prejudice to commercial interests, confidentiality, prejudice to public affairs, legal professional privilege and parliamentary privilege. These are the main exceptions. Some of these exceptions are qualified, while others are absolute.
[a] Only when asked for ?
Yes.
[b] Or is it an obligation for the administration to send all the documents to the complainant ?
No : there is no such proactive duty.

41.2.c The obligation of the administration to give reasons for its decisions
4. Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
No. Such a duty arises only (i) where it is specifically created by legislation or (ii) where it is imposed by the application of the common law principles of procedural fairness or (iii) where it arises under the guise of ECHR rights under the Human Rights Act 1998 – in particular Article 6. As regards courts, there is a general duty to provide a reasoned decision/judgment. This is a common law duty and also arises under Article 6 ECHR . The depth and extent of the reasoning depends on the individual context.
. .
Article 47 Right to an effective remedy and to a fair trial
1. 47.1 The right to an effective remedy before a tribunal
Article 13 of the Convention is not one of the rights protected under the Human Rights Act 1998. There is no general right to an effective remedy in administrative law cases in Northern Ireland/the United Kingdom. However, where the Plaintiff/Applicant succeeds in an administrative law or human rights case, the court has a broad discretion in granting a remedy and will usually grant a remedy which it considers efficacious.

2. Are there time limits for the administration to decide upon an application of a party ? If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
There are no general time limits. In certain individual contexts, a time limit (e.g.of weeks or months) may be prescribed by legislation or by Government protocol. Most time limits can be extended.
3. Is there a legal remedy if the administration fails to decide within that time limit ?
In many cases it is possible to apply to the court for an Order of Mandamus.
4. Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Yes.

5. Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.
Once again, this subject is largely governed by common law principles. There is a general principle that alternative remedies should be exhausted before the citizen applies to the court for a remedy. This is based on the philosophy that applying to the court should be a measure of last resort. However, this is an increasingly flexible principle, less rigidly applied nowadays than formerly.

The Right to a Fair Hearing – Article 47.2
1. This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR .Does your country fulfil this obligation regarding the application of EC Law ?
Yes. As regards rights created by EU law, this is required, inter alia, to give effect to the principle of the supremacy of EU law and the Remedies Directive. As regards other legal rights, this is generally required by the application of the constitutional right of the citizen of access to a court.

Other questions
1. Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
The general principle is that the Administrative Court [Judicial Review Court] exercises a supervisory jurisdiction and does not act as a court of appeal. However, where EU law rights or ECHR rights are concerned, the proportionality of the impugned decision or act may be reviewed by the court. Furthermore, the court may review any decision of an inferior tribunal/public authority which is irrational.

2. Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ?
This is a developing area and it is also contextually sensitive. Factual error is increasingly recognized as a ground for judicial review. Most evidence is given by affidavit. But oral evidence is a possibility. As a general rule, the evidence is confined to what is presented to the court by the parties.

3. Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
Expert evidence is comparatively rare in administrative cases in Northern Ireland. It is almost invariably presented to the court by the parties.

4. Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
The Administrative Court (Judicial Review Court) does not have this power. The court’s jurisdiction is supervisory – it does not substitute its opinion for that of the public authority or lower tribunal concerned. However, depending on the context, administrative tribunals may be thus empowered.

5. Is there a “two party system” before the administrative courts in your country, that is, are the individual and the administration regarded as two opposing parties ?
Yes. However, in administrative law cases, there is no true lis inter-partes, unlike private law litigation. Thus the procedure is less adversarial.

6. Is the administrative court limited to the arguments put forward by the “parties” or can the court look independently on the facts ?
Yes, as a general rule. However, in ECHR cases, the court is a public authority (under Section 6 of the Human Rights Act 1998) and it cannot act incompatibly with any of the protected Convention rights. Furthermore, in any case, the court can proactively raise new questions or issues with the parties.