Fair Procedures Notes

3. Fair procedures 'Natural justice' is the traditional lawyer's term for giving persons affected by a decision a fair role in the decision-making process. Natural justice forbids biased decisions, requires a hearing in some circumstances, and requires the decision maker to give reasons in some circumstances. The common law of procedural fairness provides special procedural protections to a person with a 'legitimate expectation' that a public authority will act in a certain way. That doctrine is addressed in detail in Topic 6; you should not do this topic without reading the material on 'procedural legitimate expectations' under that topic. In addition to the requirements of natural justice or fairness that the common law imposes on public authorities, note that statutes can impose further procedural requirements, and the Human Rights Act gives legal effect to the procedural protections in Article 5 and especially Article 6 of the European Convention on Human Rights McEldowney; Public Law = The duty to act fairly may mark a shift in judicial review: - At times the courts have considered the duty to act fairly a substitute for the rules of NJ ? Lord Diplock in GCHQ considered that NJ was replaced by the duty to act fairly. - But at other times the courts have continued to discuss the rules of NJ ? Ex P Hosenball (1981). - Question arises as to whether the use of the duty to act fairly represents a substantive change in the approach by the courts to applying principles of NJ. Fairness appears to be a broader & more flexible concept than the rules of NJ. Might appear to offer the courts the opportunity to look behind procedural rules & consider whether the outcome is fair. - Alternative interpretation = deny any difference between NJ & duty to act fairly. Unclear whether the courts will adopt the duty to act fairly as a general expression of Nj & the terms will be interchangeable. = The requirement of a fair hearing: Audi alteram partem = Can take a number of forms: the right to put one's own side of the case, the right to be consulted, the right to make representations or to submit reasoned arguments rebutting any allegations are all considered as elements in the duty imposed on all DMs to act in good faith & listen fairly to each side of the case. Giving of reasons = also important ? courts have been reluctant to provide a general duty to give reasons, but have considered that there must be sufficient reasons for the parties to know the nature of the case that has been considered. (Ex p Institute of Dental Surgery). = HL was prepared to require reasons in Doody. Prisoners convicted of murder & subject to a mandatory sentence of life imprisonment were entitled to be told by the Home Secretary what period or periods had been recommended by the judiciary to serve their sentence. The requirement to give reasons must [?] depend on the class of case involved & the role of the DM under review. R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2003] 3 WLR 252 : P was given limited entry to the UK with benefits while her asylum claim was being determined by the home secretary. He rejected her claim and notified the benefits agency who discontinued paying her benefits, which they were entitled to do once a claim had been "determined", as per the legislation. P found out about the rejection of her claim, but was never notified. She claimed that it was wrong to treat her claim as "determined" until she was told about it. HL allowed her claim, saying that it was a constitutional principle that an administrative decision that adversely affected a person had to be communicated to them before it could be a legal determination. Also, in the absence of express language or necessary implication to the contrary, general statutory words could not override fundamental rights and would be presumed by the court as intended to be subject to them. Lord Bingham (dissenting): The statute allows for benefits to be stopped once an asylum seeker's claim is "recorded by the Secretary of State as having been determined". This is unambiguous- it doesn't require that the issue actually be determined. Lord Steyn: The right to be notified of a decision is simply about "access to justice". Parliament hasn't expressly legislated contrary to this right. Lord Millett: Merely omitting to say whether or not an asylum seeker needs to be notified will not entitle the crown to argue that they do not have to notify the party, since it is a fundamental right and is therefore presumed. The requirement of a fair hearing: Audi alteram partem (hear each side) Cooper. v. Board of Works for the Wandsworth District (1863) 14 CB (NS) 180: The district board were empowered under legislation to pull down any houses where the builder has neglected to give notice of his intention to build seven days before proceeding to lay or dig the foundation. However the court held that this did not allow the council to pull the house down without first allowing the party guilty of the omission to be heard. Willes J: "A tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that that rule is of universal application, and founded upon the plainest principles of justice." * Ridge v. Baldwin [1964] AC 40: D the watch committee for the police dismissed C who had been acquitted at Crown Court on charges relating to conspiracy and corruption. The trial judge intimated C had not given professional and moral leadership to other officers. HL held that the decision to dismiss C was void because the watch committee had not observed the principles of natural justice. C had not been charged nor informed of the 

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