#16120 - Procedural Fairness - Administrative Law

Twin rationale for procedural rights as expounded in ex parte Doody:

• Non-instrumental: it enhances the rule of law and and formal justice because it helps guarantee objectivity and impartiality, furthers human dignity by ensuring that individuals are told why they are being treated unfavourably

• Instrumental: it contributes to the substantive justice of the outcome by ensuring that the goals behind rules are achieved in each case through allowing the individual affected to present evidence

Some cases since 19C have limited the right to a fair hearing, eg. to only judicial rather than administrative decisions, or to cases where there is a right but a superadded duty to act judicially, but there are indications of a less rigid application of the principle

Ridge v Baldwin: HL held that a chief constable dismissed only for cause is entitled to notice of the charge and an opportunity to be heard before being dismissed. Case is important for Lord Reid’s (and others’) discussion of the principles of natural justice:

• Reviewed 19C caselaw and gave three reasons why it should later become confused:

  • Natural justice could only have a limited application in the context of ministerial duties or discretions but courts have applied this limit in other contexts

  • Principle had limited application during the War because of special considerations during wartime, but this shouldn’t affect natural justice now

  • Confusion between rights and remedies led to the requirement of a superadded duty to act judicially before standing is given

• Based their decision on 19C caselaw:

  • Lord Reid: judicial element in natural justice should be inferred from the nature of the power and its effect on the individual

  • Lord Morris: based his judgment on 19C decisions

  • Lord Hodson: absence of a lis inter partes was not decisive, nor the characterisation of judicial, administrative or executive act

• Thus revived the principle in two ways:

  • Rediscovered 19C jurisprudence that applied the principle to a broad spectrum of interests and wide variety of decision makers

  • Disapproved of 20C impediments like lis inter partes and superadded duty

• However the case provided little positive guidance as to when natural justice should apply: the closest guidance is that its applicability depends on the nature of the power exercised and its effect upon the individual concerned.

After Ridge new terminology developed, like “fairness” or “duty to act fairly”, the development of which provoked different views:

• Linguistic rather than substantive distinction: Megarry VC in McInnes said that natural justice was a flexible term which imposed distinct situations encapsulated by the terms ‘judicial’, quasi-judicial’, ‘administrative’ or ‘executive’, but the further the move away from ‘judicial’, the more appropriate the term ‘fairness’ rather than ‘natural justice’

• Substantive impact: Basis of natural justice is the courts’ desire to maintain control over adjudication and impose their own procedures on those subject to judicial control, and therefore it is only applicable to judicial and not administrative action, and can be relatively fixed and certain. The move towards fairness is therefore a shift in the basis of procedural intervention, so that there can no longer be a single set of rules governing all applications, and courts must engage in a balancing test taking into account the nature of interests and effect of increased procedural protection on the administration.

  • Difficulties with the argument:

    • Premise (natural justice stemmed from court’s desire to maintain control) is mistaken because the major reason for its development is protection of property rights and similar interests

    • Argument that only ‘judicial’ bodies are subject to natural justice is mistaken: it applied as long as the individual’s interest is serious enough to warrant procedural protection

A legal system must have criterial for determining the applicability of procedural protection, whether it’s cast in the language of natural justice or fairness. These criteria can turn on a number of options:

• Categorization based on nature of the function performed: This was used pre-Ridge in the divide between judicial and administrative function, but it was explicitly disapproved in post-Ridge caselaw because the rationale for this kind of categorization would be predictability and certainty, but it is notoriously difficult to categorize, and even after categorization, the presumption is that the same rules would apply to all in the category, but this is problematic because of the range o matters in each category. So now the court focuses on a judicial v legislative distinction, where the latter matter are not generally subject to natural justice.

• Categorization based on nature of C’s interest: Is there some right (proprietary/personal rights and liberty interests), interest (wider than rights – eg. licensing cases) or legitimate expectation (future interests that shouldn’t be refused without procedural rights (McInnes); to enforce clear and unequivocal representation (AG of Hong Kong v Ng Yuen Shiu); where D has a set of criteria and then uses different criteria in a given case) such as to warrant the applicability of procedural protection?

These criteria employed at common law must now be seen in light of art 6 ECHR, which imposes a duty to provide a hearing where the conditions mentioned are present, when triggered by the existence of ‘civil rights and obligations’

• This existence cannot be resolved solely by domestic classification – the ECtHR will make its own autonomous judgment as to whether a dispute involves civil rights and obligations

• ECtHR has interpreted the phrase broadly but leaving considerable uncertainty as to the outer limits of ‘civil rights’ caused by distinctions drawn that are difficult to normatively justify

• This difficulty is reflected in UK jurisprudence on Art 6:

  • Hussain: A sought judicial review for withdrawal of financial asylum support

  • Begum: C offered housing as homeless person, but refused it on the ground that the area in which it was situated suffered from drugs and racism.

    • CoA: Laws LJ held that a right was by definition something to which the individual had an entitlement, and a discretionary benefit that the authority can refuse or give cannot itself constitute a right. He accepted that the conception of right was broader than the common law conception of a cause of action, and that the statutory regime obliged the authority to resolve matters on a spectrum between objective and subjective. In such circumstances the existence of a right cannot be determined by a sharp criterion – in this case, although there was discretion, A had a civil right for the purpose of art 6

    • HL: left open the issue of whether A had a civil right for the purpose of art 6, recognizing that ECtHR jurisprudence extended the meaning of civil rights beyond private rights stricto sensu and that the local authority had some discretion under the statute, but this didn’t preclude the existence of a civil right.

  • Ali: HL decided the issue left open in Begum and held that the legislation didn’t give rise to civil rights for the purpose of art 6 – the award of benefits did not constitute a right but depends on a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how they need ought to be met.

Once natural justice holds procedural protection applicable, criteria have to determine its content under a number of options ranging from an all-embracing procedural code that addresses the matter in detail to ad hoc judicial decisions on a case by case basis (and in between). In the UK a balancing test is used

Balancing test: Factors

• A range of factors are taken into account: nature of interest, type of decision challenged, whether tit was final or preliminary, subject matter, etc. are balanced

• The more important the interest, the greater the procedural protection: Wilson concerned whether someone given the discretionary life sentence was entitled to be told why – decided YES, strongly influenced by the fact that the right to liberty was involved

• Example cases:

  • Pergamon Press: Inspectors appointed to investigate companies, directors unwilling to answer questions unless given assurances and that a judicial type inquiry was conducted. Inspectors refused – directors claimed a breach of natural justice. CoA disagreed – though there was a duty to act fairly, it wasn’t breached because the directors’ interest weighed against the administration’s interest in confidentiality, speed etc.

  • Contrast GCHQ: past practice in operation of GCHQ generated a legitimate expectation that those who worked there would be consulted before important changes were made to the terms of their employment. Govt decision that they could no longer belong to trade unions without consulting them was prima facie in breach of natural justice. But considerations of national security outweighed those of procedural fairness (too deferential?)

• Nature of affected interest impacts on the procedural rights accorded: Evidenced in licensing cases, eg. McInnes held that in the case of forfeiture the individual was entitled to an unbiased tribunal, notice and a hearing, whereas in the...