#15598 - Proceedural Fairness - Administrative Law

NATURAL JUSTICE

Natural justice is concerned with how a decision is made (procedure), not the outcome / reasoning. If the procedure does not comply with natural justice, then the court will quash a decision.

Normative basis for the doctrine:

• Instrumental: Procedures are not valuable in their own right, but are instrumental to other goods:

  • Proper procedures will allow the DM reach the right decision. Utilitarians stress the link between the grant of procedural protection and the quality of substantive outcomes.

  • Allows for public participation in the decision making process

• Non-instrumental: there is an intrinsic value to proper procedures.

  • Proper procedures protect human dignity; allowing people a right to a hearing and an unbiased tribunal treats them with dignity

  • Rule of law: proper procedures ensure that public bodies comply with the law.

  • Justice must be seen to be done: proper procedures enhance public confidence in administrative / judicial systems.

Should we be concerned with fair procedure or just fair results tenable?

• Lord Phillips in AF [2009]: “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.” His point is that we are concerned with procure because of its impact on the result of the decision.

  • Although this assumes an instrumentalist view of natural justice.

• Does a fair procedure deliver better decisions? While natural justice has always been applied to judicial decision making, it has now expanded to cover administrative decisions carried out in a quasi-judicial way. Risk is it will lead to the ‘judicialisation’ of administrative procedures.

  • Also the risk that procedural justice requirements are expensive and will divert public bodies resources away from other areas.

• Denning in Evans suggests that the duty to act fairly may have such wide implications as to go beyond procedure. He notes that “the decision itself must be fair and reasonable.” However, Lord Hailsham noted “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:

• Duty to give a fair hearing: right to know the case against you / respond to that case.

  • Protected interests

  • Content of fair hearing

  • Duty to give reasons

• The rule against bias: DM should not be biased / appear to be biased

  • Participation of biased person

  • Preconceived views

The content of natural justice rules can vary greatly —their application is influenced by three factors:

• Importance of the interest infringed

• The value to C of the procedural right

• The cost of providing the procedural safeguard.

When the court is considering a non-core procedural rights (e.g. right to cross examination), it will balance these factors. But core procedural rights (e.g. right to an unbiased trail) will apply automatically.

FAIR HEARING:

First developed in

• Ridge v Baldwin [1946]: police officer dismissed without notice of case against him / opportunity to be heard. HL: decision was void for violating rules of natural justice. They rejected the notion that the rules of natural justice could only apply to decisions of quasi-judicial bodies, C must at least: (i) know the case against him; (ii) have the opportunity to be heard by the decision maker.

Context is everything in determining the content of a fair hearing: its core requirements are laid out in Ridge — C must know the case against him and be able to respond to it —but the specific application and intensity of those requirements varies depending on the nature of the case.

• Re HK [1967]: immigration officer determined that C was over 16 and therefore should not be allowed to remain in the UK. CA: this decision was an administrative one and not a judicial / quasi-judicial one —given the conditions in which airport immigration officers work, having to make on-the-spot decisions, there were limits to the time he could invest in processing / investigating a case. In this case natural justice required him to “act fairly”.

• Ex p Doody [1994]: HS had the power to determine length of life-sentences of prisoners. Prisoners argued HS had to tell them reasons for differing from the judge’s recommendation. HL: accepted the Cs argument. Prisoners had to be informed of reasons and given an opportunity to make representations. Lord Mustill: what procedural justice demands will vary from case to case, depending on context. A key factors is the statute conferring the discretion.

In setting the correct standard, the court has to be careful—there is often a need for informal procedures (where economy / expediency is needed, as in HK). Thus, in Bushell [1980] the HL found there was no right to cross-examination in a motorway planning inquiry:

• Lord Diplock: to ‘over-judicialse’ the inquiry would not be desirable —it would be unfair given that parties may which to make representations without the expense of legal representation.

• Lord Edmund-Davies (dissent): refusal of cross-examination is “clearly wrong” because the inspector, here, was performing quasi-judicial duties and must, do so in accordance with NJ.

Thus, where a body make as quasi-judicial decision it will come under the full duties of natural justice, but where the decision is administrative (i.e. HK) less stringent duties will be imposed. There is, a sliding scale between the full duties of natural justice and a more general duty of ‘fairness’.

• McInnes v Onslow Fayne [1979]: C’s application for a boxing licence was refused without oral hearing / reasons for D’s decision. Megarry VC: D’s decision was valid —he was under a duty of fairness to reach an honest decision without bias and not in pursuance of a capricious policy, but there was no obligation to give C reasons. Three types of decision made by public bodies:

  • Forfeiture cases: where C is deprived of a right / position. C is entitled to a high degree of procedural protection.

  • Legitimate expectation cases: C seeks the continuation of a certain right / renewal of one. Here C has some expectation that a right will be granted and C is entitled to hear the grounds of refusal and must be allowed to reply.

  • Application cases: where a new right is sought, the DM must merely ‘act fairly’.

Megarry notes that the requirements of NJ should not make unreasonable requirements / impose undue burdens on DMs. The law should not coerce DMs into granting rights by facilitating litigation against it under the principles of natural justice.

• “The further the situation is away from anything that resembles a judicial or quasi-judicial situation, and the further the question is removed from what may fairly be described a justiciable question, the more appropriate it is to reject an expression which includes the word justice, and to use terms such as fairness and duty to act fairly.”

In McInnes we get a sliding scale of requirements based on the right / expectation held by C.

The courts will, in some circumstances, construe ouster clauses attempting to eliminate the duties imposed by procedural fairness narrowly— i.e. in the following a statute only excluded reasons not notice.

• Al Fayed [1997]: Home Secretary rejected C’s application for naturalisation. Statute stated HS did not have to give reasons. CA: HS breached the requirements of procedural fairness. Although HS did not need to give reasons, per the statute, procedural fairness demanded he give C notice of his concerns about Ds applications and provide him with an opportunity to respond. If natural security concerns meant that HS could not give C specifics, he should tell him so, so that C can challenge such a determination in court.

ORAL HEARINGS

When will the courts find that procedural fairness demands C receives an oral hearing rather than the opportunity to make written representations? Again dependent on context.

• Lloyd v McMahon [1987]: auditor made a determination that Counsellors should pay Liverpool Council over a 100k for loss caused by Counsellors mistakes. HL: it was sufficient that they had had the opportunity to make written representations —no need for an oral hearing.

• Lord Keith: “The true question is whether [D] acted fairly in all the circumstances. It is easy to envisage cases when an oral hearing would clearly be essential in the interests of fairness.”

• Lord Bridge: “The so-called rules of natural justice are not engraved on tablets of stone… what the requirements of fairness demand… depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework within which it operates”.

• R(Smith) v Parole Board [2005]: prisoners were returned to jail after having been granted parole without the opportunity to make oral representations. HL: the Parole Board breached the duty of procedural fairness in failing to offer C an oral hearing.

  • Lord Bingham: in deciding what procedural fairness demands the court must take account of the interests at stake, here the safety of the public and C’s liberty. An oral hearing will be obviously necessary in cases where the facts are in dispute, but will arise in other cases —e.g. where the facts require explanation / mitigation, or an assessment of C’s risk to society would be greatly assisted by hearing from C.

• R(Obsbourne) [2013]: same facts as Smith. SC (Lord Reed): Cs had the right to oral hearings. Although it is impossible to...