#13574 - Procedural Fairness - Administrative Law

Procedural Fairness/Natural Justice

Natural justice is concerned entirely with how a decision is made (the procedure), not the outcome, or the reasoning.

• The doctrine sets out how a decision should be made and, if this is not followed, then there is an error of law.

• There is a difference between natural justice and procedural impropriety.

  • Natural justice means that, if a body is making a quasi-judicial decision, it needs to be made in a judicial way (and is therefore of much wider in terms of contents).

  • Procedural impropriety makes all decisions have a requirement (and is thus wider in terms of applying to more bodies).

• However, they are generally treated as synonymous, with distinction being somewhat semantic.

The normative basis for the doctrine is that the way in which a decision is made legally matters and is important for the Courts to regulate.

• Two aspects:

  • Instrumental: primary focus is on identifying procedures that will help the decision maker reach the ‘right’ decision.

    • Utilitarians stress the link between the grant of procedural protection and the quality of substantive outcomes.

  • Non-instrumental: not just about doing justice, but about being seen to do justice, and the intrinsic value in doing so.

• The distinguishing feature of adjudication can be considered an essence of procedure – it confers ‘on the affects person a peculiar kind of participation in the decision’.

  • To be adjudicatory, there must be certain restraints put on the decision-maker to prevent an abuse of power.

  • Courts are asking for adjudication to be incorporated into the administration – ‘no man to be condemned unheard’.

Is the dichotomy between procedure and result tenable?

• Lord Phillips: ‘I do not believe that it is possible to draw a clear distinction between a fair procedure and a procedure that produces a fair result.’

• Does a focus on procedure deliver better decisions?

  • Does it amount to ‘judicialisation’ of administrative procedure?

  • The concern here is the expansion of the doctrine over recent years – it has always applied to judicial decision-making, but now applies to administrative decisions carried out in a quasi-judicial way.

• Denning in Evans illustrates that the duty to act fairly may have such wide implications as to go beyond procedure.

  • He noted that there must not only be a fair hearing, but ‘the decision itself must be fair and reasonable’.

  • Howeber; Lord Halisham - ‘the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court’.

Structure of natural justice:

1. The rule against bias.

1. Participation of biased person;

2. Preconceived views.

2. Duty to give a fear hearing.

1. Protected interests;

2. Content of fair hearing;

3. Duty to give reasons

Though this taxonomy is useful, it is inevitably problematic.

• Lord Hoffmann: ‘the particular procedures which have to be followed to make a hearing fair cannot in my opinion be stated in rigid rules.’

• Lord Mustill: ‘what fairness demands is dependent on the context of the decision, and this is to be taken into account in all of its aspects.’

1. The rule against bias.

1. The principle that a judge cannot sit on his own cause:

It was seen in Pinochet (No 2) that there is an automatic dismissal of a judge who attempts to sit on his own cases.

• On the facts, Lord Hoffmann was the director of a company whose sole dealings were with Amnesty International, a charity which had eave to intervene in the case and had argued for extradition.

  • As such, this link was enough to automatically disqualify him.

  • This seems to place a large emphasis on the public perception of justice being done, rather than justice pragmatically being done – a judge of the expertise and experience of Hoffmann is capable of acting in an unbiased way, so it does seem a waste of a good judge.

The Australian test is whether fair-minded people might reasonably apprehend or suspect that the judge might not have applied ‘a fair and unprejudiced mind’ to the case.

• Perhaps, rather than automatic disqualification, automatic disclosure would be preferable, giving opposing counsel the opportunity to object.

• This objective approach is more in line with the general biased test.

A number of test cases followed, since this was the first time that automatic disqualification had been addressed in a case with no direct financial interest in the outcome of the trial.

• Locabail v Bayfield gave more flexibility, making the question not whether the judge has some link with a party involved in a cause before the judge, but whether the outcome of that cause could realistically affect the judge’s interest.

  • Automatic disqualification upon a link would be far too restrictive – all adjudicators naturally have pre-dispositions/opinions/experience.

  • The court held that it was difficult to conceive of circumstances in which an objection of partiality could be based on the religion, ethnic or national origin, gender, age, class means or sexual orientation of the judge.

  • Everything will depend on the relevant facts.

• Held that, if appropriate disclosure have been made by the judge, a party raises no objection to the judge gearing or continuing to hear the case, that party cannot therefore complain of the matter disclosed as giving rise to the danger of bias.

2. The goal to uphold the separation of powers (prohibiting the same person to be involved in more than one element):

This is seen in McGonnell, where it was held that the bailiff had been personally involved in legislative proceedings concerning M’s application.

• Due to this direct involvement in the legislative process, his impartiality was affected.

  • Necessary to focus both on the objective/subjective elements of justice being seen to be done/actually being done.

  • Clear breach in the objective sense, but the Courts notes that the application of the Article did not require a strict adherence to the separate of powers, per se.

This was further seen in R v Anderson, where the courts held that the Secretary of State’s power to decide the minimum sentence for life imprisonment was against the doctrine of the separation of powers.

• This was a response to Strasbourg’s ruling that this was a judicial role in the trial.

• This can be considered an example of the HRA strengthening natural justice?

3. The grant of protection where there is no ability to appeal properly:

In Alconbury, the issue of separation of powers was mitigated by sufficient review procedures.

• It was held that the mere fact that the Secretary of State was not an independent and impartial tribunal was not determinative – in all the circumstances, it was sufficient that the organ was subject to subsequent control by a judicial body that had full jurisdiction and did provide the guarantees of Article 6(1).

The importance of the facts in each individual case is seen in the ECtHR decision of Tsfayo v UK:

• ECtHR held that there had been a violation of Article 6, notwithstanding the availability of judicial review.

  • In particular because the review board was not merely lacking in independence from the executive, but was directly connected to one of the parties to the dispute.

  • As such, there were inadequate safeguarding procedures.

De-Winter held that review processes could be contracted out to a third party, with the necessary independence and impartiality.

4. A general test to find bias, which has been altered since the HRA:

This is a more general type of test, not limited to these specific situations, and thus imposing a lighter scrutiny – it was first set out in Gough and then modified by Porter.

• Gough test sets out that, in considering biased, it is not an objective test: instead, the courts are considered to have the necessary knowledge and expertise to deduce whether there has been a bias.

  • In terms of the necessary level of this bias, the test is whether there is a real danger of bias.

    • As such, the consideration is one of possibility, not of probability.

  • This was considered to give undue emphasis on the court’s view of facts and not enough to public perception.

    • A balance between doing justice and being seen to do justice?

• As such, Porter set out a new test:

  • This was an objective approach of whether, having regard to the relevant circumstances, as ascertained by the court, the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

  • This test puts far more emphasis on the public perception of the judicial decision, rather than the judge’s interpretation (who, in truth, are in the best position to make a judgement).

    • Also forces the Court to ignore some rather relevant information, since the fair minded observer will not have the same level of expertise regarding the process.

  • This was considered to be more compatible with Strasbourg, since it allows the outward observer to more easily identify with the reasons for the finding either way.

Following this development, the Porter test has been applied with large success.

• Gilles shows that the test is not necessarily inflexible, and can accommodate (at least to some extent) the particular knowledge and expertise of medical professionals.

  • It was not reasonable to assume that a medical professional would not take into account other expert opinions.

• However, it does make it easier to find bias.

  • In Lawal v Northern Spirit, it was...