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Process Readings Notes

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1. Process Rights UK Hearings - Ch 12 Rationale for procedural rights
 Instrumental rationale - link to correct outcome
 Non-instrumental rationale - protection of human dignity o R v Secretary of State for Home Dept; ex parte Doody (1994) (HL) o 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 o 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). o 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) o 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). o 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 o 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) o Disapproved of post-Ridge o 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 o Proprietary or personal right - eg real property: Cooper (1863) o Interests in the nature of property eg employment: Bagg's Case (1615); Fisher (1891) o Liberty: R v Parole Board; ex parte Wilson (1992)
 Interest o ie direct opposite to distinction between rights & privileges o even in absence of substantive right to particular benefit o 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—
o 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) o 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) o 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 o ECHR & HRA generally
 Courts must interpret legislation consistently w rights: s 3
 Acts of public authorities inconsistent with rights are unlawful: s6
 Strasbourg court's jurisprudence persuasive: s 2 o 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 o 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 o 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 o Nature of individual's interest:
 Wilson (imposition of life sentence - previous authorities said

Notice




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) o Benefits of procedural safeguards
 Type of subject-matter
 Type of decision incl whether preliminary or final o Cost to administration of imposing further procedural requirements Limits of balancing method o 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 o Arises frequently in anti-terrorism laws o 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) 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 o Enables supervisory function of courts o Prevent arbitrary decisions o Guarantee other forms of process rights o Cf unconvincing objection - administrative overburdening
 UK Statute o 1958 post-Franks Committee - listed tribunals required by Tribunals and Inquiries Act to provide reasons on request o Only quash where
 Failure to provide reasons substantially prejudices
 Reasons furnish error o Art 6 ECHR - no express requirement for reasons - but implicit in obligation to provide fair hearing: Stefan (2000) PC
 Common law o No general duty to give reasons - dealt with indirectly
 Absence of reasons negates right of appeal/review: Wrights' Canadian Ropes (Minister didn't give reasons - Court had regard to facts before Minister - if insufficient in law decision arbitrary)
 If known facts point overwhelmingly towards contrary outcome and require persuasive reasoning to contrary: Lonrho (1989) (not arbitrary)
 Where legitimate expectation to give reasons o Reasons required for procedural fairness: Cunningham (Board gave far less compensation than expected without reasons - board was judicial body akin to industrial tribunal  reasons required); Wilson (1992) (Parole board required to give reasons)
 Even where statute expressly says no duty to give reasons: Fayed (application for naturalisation refused - Nationality Act said no need for reasons - but did not exclude notice  had to give notice of adverse considerations, equating essentially to reasons)
 EU law - o general duty to provide reasons art 296 TFEU
 duty on EU organs and national authorities when acting as

agents of EU o Where fundamental EU right at issue, can generate duty to give reasons on national authorities: Unectef v Heylens (1987) (denies freedom of movement on basis that qualification for job not accepted 
reasons required) Appeals & rehearings Calvin v Carr (1980) PC (inquiry had to make quick decision  could be cured on rehearing)
 Defect can generally be cured if rehearing by same body or more complete form of it
 Depends on type of appeal process Hearing conducted by decision-maker v investigation by subcommittee
 Evans (probationer constable fired as not fit & proper - investigation conducted by deputy chief - decision by chief  delegation allowed provided procedurally fair - breached because not given opportunity to comment on allegations) ECHR - content of rights in art 6
 Access to a court
 Procedural equality / 'equality of arms' o Opportunity to present case
 Hearing within reasonable time
 Proper judicial process of some kind
 Reasons required to give effect to fair hearing Non-adjudicative procedures
= procedures that do not allow for involvement of affected person
 Include mediation, property, voting, custom, law officially declared, contract, managerial direction, resort to chance: per Fuller
 Procedural rules are generated by & protect the type of decision-making: Craig o Ie procedural rules in adjudication force body to make decision by adjudication rather than by some other means o Eg lack of bias / notice / hearing is essential to character of adjudication
 Statutory inquiries o Minister not required to be unbiased; public authority can devise own procedures
 Social welfare o Not adversarial Public Interest & Closed Proceedings - Ch 13 Overview
 Type of hearing available is often confined by the national interest


Change in 1960 converted crown privilege to public interest immunity - determination by Court by weighing of interests Qualification of statutory procedures in particular cases - substituted for balancing by courts o Individual concerned can see open hearings, but not closed proceedings where special advocate attends o Special advocate can take instructions from client orally before reading and written after reading. Generally cannot communicate with client without leave of court after reading Supreme Court in AF (2010) determined that natural justice limits range of material that can be withheld where liberty at stake and art 6 ECHR applicable o BUT in Tariq (2011) those limits not applicable to all cases involving art 6 rights o Al Rawi (2011) - must be statutory foundation for closed material procedure Further legislative reform on the horizon

Bias & Independence - Ch 14 Overview
 Actual or perceived bias
 HRA - Art 6 of ECHR establishes right to hearing by "independent and impartial tribunal established by law" Test for bias
 19th century - where no pecuniary interest, real likelihood of bias: Rand (1866)
 Attempts to move towards reasonable suspicion o McCarthy (1924) per Hewart LCJ - reasonable suspicion of bias; but disapproved in Canborne (1955) o Lannon (1969) per Denning MR - reasonable suspicion (although an ambiguous decision) o Gough (1993) - same test in all cases of apparent bias - no need to frame as 'reasonable man' because court personifies the reasonable man o Porter (2002) - whether, having regard to the relevant circumstances ascertained by the court, the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias
 Finding of bias has been avoided by imputing great deal of legal knowledge (procedural & substantive) to 'observer': Taylor v Williamsons (2002); Hart (2002)

 EU - whether an objective risk of bias in light of the circumstances identified by the Court: Piersack v Belgium Cases R (Anufrijeva) v Home Secretary [2004] 1 AC 604 (entitlement to reasons)

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