The Hamlyn Trust owes its existence today to the will of the late Miss Emma Warburton Hamlyn of Torquay, who died in 1941 at the age of eighty. She came of an old and well-known Devon family. Her father, William Bussell Hamlyn, practised in Torquay as a solicitor and JP for many years, and it seems likely that Miss Hamlyn founded the trust in his memory. Emma Hamlyn was a woman of strong character, intelligent and cultured; well-versed in literature, music and art; and a lover of her country. She travelled extensively in Europe and Egypt, and apparently took considerable interest in the law and ethnology of the countries and cultures that she visited. An account of Miss Hamlyn by Professor Chantal Stebbings of the University of Exeter may be found, under the title ‘The Hamlyn Legacy’, in Volume 42 of the published lectures.

Miss Hamlyn bequeathed the residue of her estate on trust in terms which, it seems, were her own. The wording was thought to be vague, and the will was taken to the Chancery Division of the High Court, which in November 1948 approved a Scheme for the administration of the trust. Paragraph 3 of the Scheme, which follows Miss Hamlyn's own wording, is as follows:

The Trustees are to include the vice-chancellor of the University of Exeter; representatives of the Universities of London, Leeds, Glasgow, Belfast and Wales; and persons co-opted.

1 Introduction

The previous chapter considered the foundations of EU administrative law, and this chapter addresses the principal challenges that it faces, some of which are horizontal, in the sense of internal to the regime of EU administrative law, while others are vertical in nature, flowing from the interplay between EU law and national administrative law or global administrative law.

The discussion begins with the caseload problems that beset the EU courts. In the past the discourse on this issue has been directed principally towards the ECJ, with concerns about its capacity to cope with the increase in the number of preliminary references. More recently it has been the General Court that has been most problematic in this regard, which is of particular importance for EU administrative law given that it has jurisdiction over direct actions for judicial review. The sources of the caseload problem are examined, the implications that this has for EU administrative law are explored and the proposed solutions are scrutinized.

The discussion then turns to process and the challenges that EU administrative law faces in this regard. The EU courts have achieved much in this area, especially in relation to process rights that relate to individualized adjudication. Their jurisprudence crafted on general principles of law and fundamental rights has ensured protection for the right to be heard and the more general rights of the defence. The EU courts have, however, faced difficulties flowing from initiatives to tackle terrorism post-9/11, more especially in the form of legal challenges to asset-freezing orders imposed by the EU pursuant to decisions made by the UN. The infirmities of due process at the UN level prompted legal challenges to the EU regulations. This in turn has forced the courts to articulate how the right to be heard can be balanced against the needs of security. The remainder of the discussion on process considers the possibility of a general law or set of model rules on administrative procedure, which would be applicable not merely to individualized adjudication, but also to rule making, public contracts, mutual assistance between national administrations, and data transfers. It will be argued that model rules of this nature are desirable and that concerns about such a development are misplaced.

1 Introduction

The previous chapters considered UK administrative law, its foundations and the challenges it faces. It is readily apparent from this discussion that the challenges included the impact of EU law on domestic precepts of constitutional and administrative law. The focus in this chapter and that which follows switches to EU administrative law, the foundations of which are considered in this chapter, and the challenges faced by it in the chapter that follows.

The discussion begins with the formal foundation of EU administrative law. This was less controversial than in the UK, since the European Coal and Steel Community (ECSC) Treaty, from its very inception, contained provisions authorizing judicial review, which were taken over in amended form into the Rome Treaty that established the European Economic Community. There was nonetheless much judicial creativity required to transform this formal foundation into a body of doctrine with precepts of administrative law analogous to those found in the Member States. The development of general principles of law was central in this respect. While much has been written about such principles the story concerning their evolution as precepts of administrative law has not been fully revealed and is told in the section that follows.

The focus then turns to the substantive foundations of EU administrative law, and the way in which the rule of law has informed development of doctrine in this area. There is analysis of the nature of the political order in the emergent Community in the 1960s and 1970s, since this is essential in order to understand the imperatives underlying the development of EU administrative law. This is followed by examination of the more particular ways in which the rule of law informed doctrinal development in this area. There is analysis of judicial review in terms of its availability, its targeting, the grounds of such review, and access. The objective is not to provide detailed analysis of the grounds of review, which would require a book in itself. It is rather to consider how these were elaborated, drawing analogies with the development of principles of judicial review in the UK set out in the first chapter.

1 Introduction

The discussion thus far has focused primarily on national and EU administrative law, although the challenges posed by global administrative law have been raised in the earlier analysis. This chapter and that which follows focus directly on global administrative law. The field has developed very considerably in the new millennium, and there is much valuable scholarship. Neil Walker has astutely observed that to subscribe to phrases such as ‘postnational constitutionalism’ and ‘postnational public law’ is itself to take a normative position in relation to postnational sceptics, who deny that conceptions of constitutionalism or public law can flourish beyond the traditional Westphalian state. The literature on global administrative law is predicated on the assumption that discourse concerning the application of public law principles beyond the nation state is meaningful, an assumption that I share.

This chapter begins with an overview of the regulatory foundations of global administrative law that maps the landscape, followed by an explanation of the rise in global governance and increased regulatory activity at the global level. This is complemented by consideration of the judicial foundations of global administrative law. The material is rich, complex and diverse, and thus consideration of these foundational issues is essential for understanding the subsequent discussion in this chapter and the chapter that follows. The focus then shifts to legal issues that are central to the foundations of global administrative law, which are contestable and still contested. Four such issues are discussed in the course of the chapter.

The first concerns the very way in which we conceptualize legal involvement in this area. The dominant view, as reflected in the title to this chapter, is to think of it in terms of global administrative law. This view has not, however, gone unchallenged. It has been argued that to conceptualize legal intervention in these terms is problematic in various respects, and that it is preferable to think in terms of the control of international public authority based on international institutional law. The focus then shifts to the second foundational issue, which concerns the very claim that global administrative law is ‘law’, and the sense of law that is being deployed for these purposes. This raises interesting and difficult points concerning the extent to which global administrative law can be conceptualized in traditional positivist terms, and the extent to which it is expressive of a non-positivist conception of law.