#3502 - Natural Justice - Administrative Law

Abbreviations

• w/ - with

• w/out – without

• b/w – between

• b/f – before

• co-op – cooperation

• pr. -

• DM – decision maker

• NJ – natural justice

• Admin – administrative

• Min. – minister

Fairness v Natural Justice

• Post Ridge v Baldwin new terminology of ‘fairness’ + ‘duty to act fairly’ (Lord Parker in ReHK)

• 2 opposing views

1. terms are interchangeable case law doesn’t prohibit this

• but NJ tends to be associated with robust procedural protection in judicial process whereas procedural fairness is used as a signal of more flexible, content-variable concept suitable in many administrative contexts.

2. shift from NJ to fairness has broader significance (McLoughlin) – fundamentally altered the basis for procedural intervention because no longer restricted to adjudicative setting + no fixed standards for determining breach. Courts engage in difficult balancing operation, taking into account individual interest + effect on administration.

• Craig: difficulties w/this:

  1. NJ didn’t originate from judicial desire to maintain control over adjudication but rather to protect property rights & interests thereto

  2. App of NJ, before intro of fairness, wasn’t uniform & courts already balanced individual interests w/admin effects in deciding where to draw the line

• Craig2 interpretations of fairness

  1. fits into adjudication framework & doesn’t require development of non adjudicative procedures – courts determine what adjudicative procedures are required (notice, oral hearing, reasons) & balancing may differ from NJ in degree but not in kind

  2. fairness has broader implications – adjudication is only one form of DM & there are others, incl. mediation, arbitration etc. Concept of fairness may lead to development of other procedural forms...

Purpose of Fair Procedures

1. Instrumentalism

• Galligan: a person whose case is dealt with in accordance with authoritative standards is treated fairly and procedures are fair to extent that they bring about a fair result. Procedures themselves don’t have intrinsic/self-evident value – unless it serves some significant values, it won’t be connected to fair treatment & won’t have a claim on our resources. They are merely working rules which have gained a place in our system through contribution to upholding of standards and, although once they’re settled, temptation might arise to regard them as complete & independent in themselves, in reality, despite claims that they flow from fountains of justice, they result from good practice. Fundamentally, it’s achievement of social goals that justifies fair procedure. Dignitarian theorists undervalue the significance of accurate outcomes.

2. Dignitarianism

• The guiding principle in designing & evaluating procedures is human dignity. Rights to interchange between citizen & official conferred by a fair hearing have intrinsic value because they express the elementary idea that a person, rather than a thing, has a right to be consulted about what is to be done with him (Tribe). Giving of reasons is especially dignitarian. Principal purpose of rules of NJ is to enable a person to identify with decision making process. Acknowledges person’s right to understand his treatment + allows him to make a genuine contribution to decision affecting his welfare, invoking the idea of justice, not just self-interest.

• Galligan: but fair procedures are means to fair treatment which in itself is important only because person is recognised as a moral agent entitled to be treated w/dignity & respect.

3. Mid View

• Allan: person’s moral rights consist in his entitlement to be treated fairly, both in content & application of legal rules. Rigorous procedures are often demanded because of their importance for the outcomes but there’s no right to perfect procedures & no moral right to accurate app of legal rules, only to procedures which properly reflect the gravity of injustice entailed by mistaken decision. Instrumental value shouldn’t be underestimated but procedures also have intrinsic value in acknowledging person’s right to understand his treatment. If obedience of law ideally entails recognition of its morally obligatory character, there must be ways to test its moral credentials. Procedures also have intrinsic value in so far as they constitute a fair balance between demands of accuracy & social needs. Purpose of fair hearing is to allow C to make genuine contribution to the decision, invoking his sense of justice as much as his self-interest.

Criteria to determine Applicability of Procedural Protection

1. Depending on nature of function performed by the body subject to JRadministrative/judicial dichotomy

• Disapproved of post Ridge b/c difficult to place cases in rigid categories

2. Depending on C’s interest – e.g. whether right, interest, legitimate expectation warrants judicial protection

1. Right – personal & proprietary

2. Interest – used as a basis for hearing in absence of C’s substantive right

3. Legitimate expectation

1. Protection of future interests (e.g. licence holder seeking renewal)

2. Clear & unequivocal representation

1. Provides foundation for procedural rights where interest on its own wouldn’t

2. Enhances C’s procedural rights (Liverpool Taxi)

3. Institutional had established criteria, C relied, then sought to change it (Khan)

4. Art 6(1) ECHR – imposes duty to provide a hearing triggered by existence of civil rights & obligations (meaning unclear) distinctions drawn by ECtHR hard to justify:

• Existence of discretion on the part of PB means no civil rights or obl. under Art 6

• Distinction b/w rights of individual as private person v as citizen

• Wright v SS for Health [2009] – SS had, pursuant to statute, drawn up a list of people considered unsuitable to work with vulnerable adults without giving them opportunity to make reps. Held because right to practise one’s profession is a “civil right” under Art 6, required fair procedure (Baroness Hale)

Content of Procedural Protection

• A spectrum of choices = all embracing code ad hoc judicial decisions (+ many in between)

• No code in UK – courts undertake a balancing exercise on ad hoc basis, taking into acc C’s interest, benefits to be derived + costs to admin

• Specific Procedural Norms

1. Notice

• Rule of law requires constitutional state to accord to individuals a right to know of decisions before they affect their rights

2. Consultation

• No gen. duty to consult in common law unless C has a legit. expectation or it’s imposed by statute

3. Hearing

4. Representation

• Not absolute right because may be counterproductive, unnecessary, etc. where case can be speedily resolved

• Courts are generally reluctant to exclude it altogether

5. Duty to give Reasons

• Rationale (Allan) serves dignitarian + instrumental functions by expressing respect to C’s participation in decisions affecting his interests

• Benefits

1. Assists courts in application of substantive review – easier when DM’s reasoning is known

2. Ensures decisions have been thought through by agency

3. Increases public confidence in administrative process

• Disadvantages

1. Stifles exercise of discretion

2. Overburdens administration

• No general duty to give reasons in UK common law is moving in that direction]

• Duty may be imposed by:

1. General Statute – stringency of duty depends on language & context but must be adequate, deal with substantial parts of decision & enable C to assess if he can challenge it. Decision will be quashed only if C’s rights/interests have been substantially prejudiced by their absence.

• Cunningham [1991] – Board of Civ. Service Appeal recommended reinstatement of C dismissed from the role of prison physical inspector after 23 years of service + Home Sec. had duty to give reasons why

• Dental Surgery [1994] – DS received less funding than other HE institutions, held HEFC which did the investigation had no duty to give reasons. Sedley J: duty arises in cases:

1. Subject matter is an interest so highly regarded by law that fairness requires reasons to be given as of right (e.g. Manning)

2. There’s a “trigger factor” specific to the case (e.g. Cunningham)

• Al Fayed - claimants refused naturalisation by Home Sec; although statute excluded duty to give reasons, held it didn’t exclude notice, a separate requirement of NJ, which was used by court as foundation to require HO to provide sufficient info to C as to its concerns.

• Manning [2004] – CPS had duty to give reasons for refusing to prosecute killing of prisoner because right to life’s fundamental

2. ECHR/HRA – no express requirement but ECtHR regards it as implicit in obligation to provide a fair hearing (Art 6(1)). Don’t have to be given on every point but must be sufficient for C to understand nature of decision/decide on appeal.

3. Common Law

1. Indirect technique for securing provision of reasons - argue their absence renders appeal/review/exercise of a right more difficult

• Doody – prisoners convicted of murder & subject to mandatory life sentence entitled to be told by HS what period’s been recommended. Req. to give reasons depends on class of case + role of DM.

2. Direct techniques – court considers nature of DM, context + whether reasons are required on the ground of fairness (e.g. Al Fayed)

4. EC Law – Art 253 EC imposes duty to give reasons. Extent depends on nature of act + context. Mainly imposed on Comm. institutions + can apply to national authorities where they act as agents for application of EU law.

• Content of Reasons

• Porter (No2) [2004] – must be intelligible, adequate, enable C to understand why matter was so decided, can be brief with degree of...