Natural Justice Notes

Natural Justice Procedural Justice 1. The two rules nemo judex in sua causa: not judge in his own cause audi alteram partem :a man's defence must always be fairly heard 2. Introduction: the ancient origins and modern reasons for procedural justice Ancient origin: Dr Bentley's case: where Fortescue J traces the principle to the Garden of Eden. Modern: UNDec HR: Art 10, ECHR Art 6, US Constitution It's not just about airing grievances, but leads to instrumental (effcient application of rules) and non instrumental (treating person with respect) procedural justice. 3. The Human Rights Act 1998 and article 6(1) of the European Convention The European Convention does not refer specifcally to administrative proceedings, but Article 6(1), however, provides for "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" in the "determination" of an individual's "civil rights and obligations or of any criminal charge against him". Do administrative proceedings determine "civil rights and obligations? Originally meant for private law. Examples of what is not 'civil rights + obligations' * * * Immigration (XYZV and W v UK) Criminal Injuries compensation (B v Netherlands) Tax benefts (App No 8903 v Austria) On the other hand, Article 6(1) is applicable to disciplinary proceedings at least where they may involve a deprivation of liberty since such is considered a "criminal charge" * * * * * * Military discipline (X v UK) Prison discipline (Campbell and Fell v UK) Enjoyment/Value of Land (Ringeisen v Austria, Alconbury v SSETR) Grant of property licenes ( Hakansson and Sturesson v. Sweden) Welfare benefts (Feldbrugge v. Netherlands) Accommodation for homeless ( Runa v. Tower Hamlets LBC) * Not part of ratio, but favoured view of Lord Hoffman, para 55 1 * But cf R v LB Croydon where right of "child in need to accommodation" did not engage art 6(1) So what is the test?Court and Commission seem to work on 'intuitive' case by case basis ( O'Boyle and Warbrick). Lady Hale in R v LB Croydon 2009 says there are two categories: (1) Where determination of public law question directly decisive of private law rights: e.g Ringeisen, and (2) Where closely analogous: e.g state benefts (like contract) and now property rights, even, reluctantly public employment NB: Court will accept "curing" initial decision fails to comply by review before independent tribunal of full jurisdiction (Le Compte).T hus in Alconbury review before the High Court by a special species of judicial review - an application made under section 288 of the 1990 Act - that was enough to "cure" the SoS's the lack of impartiality and independence of the SS. This "curative principle" is most important and we will consider it in detail later on. 4. The Curative Principle * * Art 6(1): "fair and public hearing within reasonable time by independent and impartial tribunal est by law" in the "determination" of an individual's "civil rights and obligations or of any criminal charge against him". Problem, many PA not impartial nor independent (e.g no security of tenure) Curative Principle * Even if Art 6(1) applies, E Court accepts it is satisfed if bring case in front of Court of full jurisdiction making entire procedure Art 6 compliant - this is the 'curative principle' . * E.g R (Alconbury) v SSEnvironment 2001 HL: Curative principle 'saved the day'. Had it not, implications would have been profound! Court of 'full jurisdiction' * * The question is if application for JR (or other remedy) suffcient to remedy any falling short of standards of Art 6(1) by PA. Lord Hoffmann in Runa Begum para 35: Since nearly all acts of government are subject to JR, can calmly view extension of Art 6, because JR will respect democratic accountability and sovereignty of Parliament in any particular case * But note that the HR Court clearly signalled that if JR cannot set right what has gone wrong at frst instance, principle will not operate and reforms to admin procedures necessary. 2 

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