#14845 - Process Readings - Comparative Public Law

1. Process Rights

UK

Hearings – Ch 12

Rationale for procedural rights

• Instrumental rationale – link to correct outcome

• Non-instrumental rationale – protection of human dignity

  • R v Secretary of State for Home Dept; ex parte Doody (1994) (HL)

  • Reasons should be given for sentence – human desire to understand decision | potential to point out errors in review

Development of scope of hearing rule (audi alteram partem)

• Limited in early 1900s

  • Court-like requirement for oral hearing cannot be grafted onto administration where not required by statute: Alridge (1915) HL (refused access to housing inspector’s report – parliament taken to have intended that board could follow its own procedure).

  • Confined to ‘judicial or quasi-judicial’ not administrative decisions: Errington v Minister for Health (1935) CA (Minister conferred with local authority & received further evidence after close of public inquiry—inquiry lis inter partes acting quasi-judicially—breach); cf Offer v Minister for Health (1936) (lis had not yet been joined not inter partes, not judicial in character, not subject to hearing rule)

  • Limitation to rights (not privileges): Nakkuda Ali (1951) PC (cancellation of licence = withdrawal of privilege); Parker (1953) (cab licence = ‘permission’)

    • Lord Shaw — “But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.”

    • Note does not reflect current position

• Revisited in Ridge v Baldwin (1964) HL (Chief Constable dismissed entitled to opportunity to be heard).

  • Reid LJ resurrects NJ pointing out reasons for narrowing:

    • Limits on NJ in context of discretion applied to other areas

    • Limits in wartime continued past war

    • Misconceived ‘superadded duty to act judicially’ for relief by certiorari

  • Requirement for NJ dependent on nature of power & effect on individual

    • Limitations above not decisive

Applicability – criterion

• Character of function performed by body subject to judicial review (administrative, judicial, legislative)

  • Disapproved of post-Ridge

  • Good for certainty/predictability – but lines between categories are blurred

Nature of applicant’s interest

• Currently favoured approach: whether there is some right, interest or legitimate expectation so as to warrant procedural protection: Schmidt v Secretary of State (1969) CA

• Right

  • Proprietary or personal right – eg real property: Cooper (1863)

  • Interests in the nature of property eg employment: Bagg’s Case (1615); Fisher (1891)

  • Liberty: R v Parole Board; ex parte Wilson (1992)

• Interest

  • ie direct opposite to distinction between rights & privileges

  • even in absence of substantive right to particular benefit

  • absence of substantive right may make procedural rights more important: Malloch (1971) per Wilberforce LJ

    • eg officers dismissed for cause / at pleasure

• Legitimate expectation, including where—

  • Akin to future interest – application for substantive interest: McInnes v Onslow-Fane (1978) per Megarry VC (eg applicant licence holder seeking renewal / elected person seeking confirmation of appointment)

  • 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)

    • Augments existing warrant for protection of interest: Liverpool Taxi case (1972) (council capped taxi licence numbers – assured drivers would not be increased w/out consultation proprietary interest in licence enhanced by representation)

  • Defendant institution seeks to deviate from established criteria for application of policy: Khan (1984) (applicant sought to adopt brother’s child from Pakistan – criteria used by Home Office published breach)

• “civil rights & obligations”: ECHR Art 6(1) incorporated by Human Rights Act 1998

  • ECHR & HRA generally

    • Courts must interpret legislation consistently w rights: s 3

    • Acts of public authorities inconsistent with rights are unlawful: s 6

    • Strasbourg court’s jurisprudence persuasive: s 2

  • Art 6:

    • Trigger standard: ‘in the determination of his civil rights and obligations or of any criminal charge against him’

    • ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

    • judgment to be publicly; parts of trial may be closed in interests of

      • morals,

      • public order,

      • national security,

      • interests of juveniles,

      • protection of private life of parties, or

      • in interests of justice

  • Scope of ‘civil rights and obligations’

    • Rights adjudicated in civil law courts = private law rights: Feldbrugge v Netherlands (1986) ECtHR; Runa Begum v Tower Hamlets (2003)

    • Not so restricted: rights under art 14 of ICCPR

    • ECtHR: includes such rights as

      • Disputes concerning land use: Ringeisen v Austria

      • Monetary claims against public authorities: Editions Periscope v France

      • Applications for & revocation of licences: Benthem v Netherlands

      • Claims for social security benefits: Feldbrugge

      • Professional disciplinary proceedings: Le Compte v Belgium

    • Applies in initial proceedings if they influence later proceedings: R v Governor of X School (2011) UKSC

    • Questionable distinction drawn between substantive entitlement and discretionary benefit as criterion

  • Examples (UK courts)

    • Husain (2001) (withdrawal of financial asylum support some social security payments = civil right – but not discretionary social welfare payments)

    • Begum (2002); Ali (2010) (statutory body required to provide crisis accommodation if criteria met – had some discretion as to manner of provision dependent on evaluative judgments in determining whether satisfied statutory criteria – therefore no art 6 right)

Content of procedural protection

Method of determining

• Level of specificity v balancing – codification or elastic according to factors/considerations. UK generally not codified

• Factors

  • Nature of individual’s interest:

    • Wilson (imposition of life sentence – previous authorities said information needn’t be disclosed important so warranted greater protection)

    • Pergamon Press (inspectors represented to companies certain procedural safeguards if directors responded to questions – resiled found for inspectors – potential effect of report v interest in administration ensuring confidentiality v speed v preliminary nature of proceedings)

  • Benefits of procedural safeguards

    • Type of subject-matter

    • Type of decision incl whether preliminary or final

  • Cost to administration of imposing further procedural requirements

• Limits of 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

  • Arises frequently in anti-terrorism laws

  • 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 compatible with ECHR art 6 – core right to be given sufficient information about allegations to give effective instructions – not necessarily detail or sources)

    • BUT Tariq (2011) (provision of gist not required in security vetting) – lesser consequences so lesser rights – not a ‘core right’ where liberty not at stake)

• Causation not relevant – doesn’t matter whether protection would make difference to outcome: AF (reviewing court not well disposed to make such a speculative judgment)

Notice

• Reasonable time to prepare

• Notice of facts on which judgment based

• Notice of legal characterisation alleged

• Anufrijeva (2004) (asylum seeker income support terminated after asylum application rejected – not communicated to claimant notice required)

• Gaming board case (1970) (applicants for gaming licence had limited rights to source of negative information about applicant)

Consultation

• No general duty to consult, but only where legitimate expectation: Greenpeace case (2007) (White Paper indicated not inclined to support nuclear power and would fully consult if changed – changed with limited consultation flawed)

Hearing

• Should generally be oral but not always so

• Nearly always have a chance to respond to opposing case: cf Roberts (2005) HL (adverse docs from Home Office withheld from applicant within power || strong dissents from Bingham & Steyn LJJ)

• Can waive unless public interest: Hanson (1978) (wider public interest – could not waive)

Rules of evidence

• Do not have to be followed, subject to overarching requirement for fair hearing

Legal representation

• No absolute right: Bonhoeffer (2011) ECHR

• Person charged with criminal offence must have recourse to legal rep: Art 6(3)(c) ECHR in Ezeh v UK (2002)

Reasons

• Importance

  • Enables supervisory function of courts

  • Prevent arbitrary decisions

  • Guarantee other forms of process rights

  • Cf unconvincing objection – administrative overburdening

• UK Statute

  • 1958 post-Franks Committee – listed tribunals required by Tribunals and Inquiries Act to provide reasons on request

  • Only quash where

    • Failure to provide reasons substantially prejudices

    • Reasons furnish error

  • Art 6 ECHR – no express requirement for reasons – but implicit in obligation to provide fair hearing: Stefan (2000) PC

• Common law

  • No general duty to give reasons – dealt with indirectly

    • Absence of reasons...