Natural Justice Notes

Abbreviations

• w/ - with

• w/out – without

• b/w – between

• b/f – before

• co-op – cooperation

• pr. -

• DM – decision maker

• NJ – natural justice

• Admin – administrative

• Min. – minister

Fairness v Natural Justice

• Post Ridge v Baldwin new terminology of ‘fairness’ + ‘duty to act fairly’ (Lord Parker in ReHK)

• 2 opposing views

1. terms are interchangeable case law doesn’t prohibit this

• but NJ tends to be associated with robust procedural protection in judicial process whereas procedural fairness is used as a signal of more flexible, content-variable concept suitable in many administrative contexts.

2. shift from NJ to fairness has broader significance (McLoughlin) – fundamentally altered the basis for procedural intervention because no longer restricted to adjudicative setting + no fixed standards for determining breach. Courts engage in difficult balancing operation, taking into account individual interest + effect on administration.

• Craig: difficulties w/this:

  1. NJ didn’t originate from judicial desire to maintain control over adjudication but rather to protect property rights & interests thereto

  2. App of NJ, before intro of fairness, wasn’t uniform & courts already balanced individual interests w/admin effects in deciding where to draw the line

• Craig2 interpretations of fairness

  1. fits into adjudication framework & doesn’t require development of non adjudicative procedures – courts determine what adjudicative procedures are required (notice, oral hearing, reasons) & balancing may differ from NJ in degree but not in kind

  2. fairness has broader implications – adjudication is only one form of DM & there are others, incl. mediation, arbitration etc. Concept of fairness may lead to development of other procedural forms...

Purpose of Fair Procedures

1. Instrumentalism

• Galligan: a person whose case is dealt with in accordance with authoritative standards is treated fairly and procedures are fair to extent that they bring about a fair result. Procedures themselves don’t have intrinsic/self-evident value – unless it serves some significant values, it won’t be connected to fair treatment & won’t have a claim on our resources. They are merely working rules which have gained a place in our system through contribution to upholding of standards and, although once they’re settled, temptation might arise to regard them as complete & independent in themselves, in reality, despite claims that they flow from fountains of justice, they result from good practice. Fundamentally, it’s achievement of social goals that justifies fair procedure. Dignitarian theorists undervalue the significance of accurate outcomes.

2. Dignitarianism

• The guiding principle in designing & evaluating procedures is human dignity. Rights to interchange between citizen & official conferred by a fair hearing have intrinsic value because they express the elementary idea that a person, rather than a thing, has a right to be consulted about what is to be done with him (Tribe). Giving of reasons is especially dignitarian. Principal purpose of rules of NJ is to enable a person to identify with decision making process. Acknowledges person’s right to understand his treatment + allows him to make a genuine contribution to decision affecting his welfare, invoking the idea of justice, not just self-interest.

• Galligan: but fair procedures are means to fair treatment which in itself is important only because person is recognised as a moral agent entitled to be treated w/dignity & respect.

3. Mid View

• Allan: person’s moral rights consist in his entitlement to be treated fairly, both in content & application of legal rules. Rigorous procedures are often demanded because of their importance for the outcomes but there’s no right to perfect procedures & no moral right to accurate app of legal rules, only to procedures which properly reflect the gravity of injustice entailed by mistaken decision. Instrumental value shouldn’t be underestimated but procedures also have intrinsic value in acknowledging person’s right to understand his treatment. If obedience of law ideally entails recognition of its morally obligatory character, there must be ways to test its moral credentials. Procedures also have intrinsic value in so far as they constitute a fair balance between demands of accuracy & social needs. Purpose of fair hearing is to allow C to make genuine contribution to the decision, invoking his sense of justice as much as his self-interest.

Criteria to determine Applicability of Procedural Protection

1. Depending on nature of function performed by the body subject to JRadministrative/judicial dichotomy

• Disapproved of post Ridge b/c difficult to place cases in rigid categories

2. Depending on C’s interest – e.g. whether right, interest, legitimate expectation warrants judicial protection

1. Right – personal & proprietary

2. Interest – used as a basis for hearing in absence of C’s substantive right

3. Legitimate expectation

1. Protection of future interests (e.g. licence holder seeking renewal)

2. Clear & unequivocal representation

1. Provides foundation for procedural rights where interest on its own wouldn’t

2. Enhances C’s procedural rights (Liverpool Taxi)

3. Institutional had established criteria, C relied, then sought to change it (Khan)

4. Art 6(1) ECHR – imposes duty to provide a hearing triggered by existence of civil rights & obligations (meaning unclear) distinctions drawn by ECtHR hard to justify:

• Existence of discretion on the part of PB means no civil rights or obl. under Art 6

• Distinction b/w rights of individual as private person v as citizen

• Wright v SS for Health [2009] – SS had, pursuant to statute, drawn up a list of people considered unsuitable to work with vulnerable adults without giving them opportunity to make reps. Held because right to practise one’s profession is a “civil right” under Art 6, required fair procedure (Baroness Hale)

Content of Procedural Protection

• A spectrum of...

Buy the full version of these notes or essay plans and more in our Administrative Law Notes.