Why Consult? The Case of Public Consultation in Hong Kong Administrative Law

Abstract This article investigates the law of public consultation in Hong Kong administrative law. The Hong Kong cases in this area have consistently followed, without question, the corresponding English authorities, and seem to have simply assumed the appropriacy of this approach. But given that it seems open to academic argument whether the Hong Kong legal system shares the same liberal democratic political theory which the English legal system endorses – and given that the English law of public consultation is commonly regarded as, inter alia , pursuing a liberal democracy-based rationale – two questions arise: (i) what is, or what are, the underlying rationale(s) for the Hong Kong law of public consultation; and (ii) to what extent is it appropriate for the Hong Kong courts to adopt the English case law on public consultation? This article contends that even assuming the Hong Kong legal system is not underpinned by a liberal democratic political theory, (i) the Hong Kong law of public consultation is underpinned by the informational rationale and a specific strand of the respect rationale; and (ii) English case law on public consultation can be implemented into Hong Kong law, insofar as its reasoning can be completed without affirming a liberal democratic premise.