Procedural Fairness Notes

Procedural Fairness/Natural Justice

Natural justice is concerned entirely with how a decision is made (the procedure), not the outcome, or the reasoning.

• The doctrine sets out how a decision should be made and, if this is not followed, then there is an error of law.

• There is a difference between natural justice and procedural impropriety.

  • Natural justice means that, if a body is making a quasi-judicial decision, it needs to be made in a judicial way (and is therefore of much wider in terms of contents).

  • Procedural impropriety makes all decisions have a requirement (and is thus wider in terms of applying to more bodies).

• However, they are generally treated as synonymous, with distinction being somewhat semantic.

The normative basis for the doctrine is that the way in which a decision is made legally matters and is important for the Courts to regulate.

• Two aspects:

  • Instrumental: primary focus is on identifying procedures that will help the decision maker reach the ‘right’ decision.

    • Utilitarians stress the link between the grant of procedural protection and the quality of substantive outcomes.

  • Non-instrumental: not just about doing justice, but about being seen to do justice, and the intrinsic value in doing so.

• The distinguishing feature of adjudication can be considered an essence of procedure – it confers ‘on the affects person a peculiar kind of participation in the decision’.

  • To be adjudicatory, there must be certain restraints put on the decision-maker to prevent an abuse of power.

  • Courts are asking for adjudication to be incorporated into the administration – ‘no man to be condemned unheard’.

Is the dichotomy between procedure and result tenable?

• Lord Phillips: ‘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.’

• Does a focus on procedure deliver better decisions?

  • Does it amount to ‘judicialisation’ of administrative procedure?

  • The concern here is the expansion of the doctrine over recent years – it has always applied to judicial decision-making, but now applies to administrative decisions carried out in a quasi-judicial way.

• Denning in Evans illustrates that the duty to act fairly may have such wide implications as to go beyond procedure.

  • He noted that there must not only be a fair hearing, but ‘the decision itself must be fair and reasonable’.

  • Howeber; Lord Halisham - ‘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:

1. The rule against bias.

1. Participation of biased person;

2. Preconceived views.

2. Duty to give a fear hearing.

1. Protected interests;

2. Content of fair hearing;

3. Duty to give reasons

Though this taxonomy is useful, it is inevitably problematic.

• Lord Hoffmann: ‘the particular procedures which have to be followed to make a hearing fair cannot in my opinion be stated in rigid rules.’

• Lord Mustill: ‘what fairness demands is dependent on the context of the decision, and this is to be taken into account in all of its aspects.’

1. The rule against bias.

1. The principle that a judge cannot sit on his own cause:

It was seen in Pinochet (No 2) that there is an automatic dismissal of a judge who attempts to sit on his own cases.

• On the facts, Lord Hoffmann was the director of a company whose sole dealings were with Amnesty International, a charity which had eave to intervene in the case and had argued for extradition.

  • As such, this link was enough to automatically disqualify him.

  • This seems to place a large emphasis on the public perception of justice being done, rather than justice pragmatically being done – a judge of the expertise and experience of Hoffmann is capable of acting in an unbiased way, so it does seem a waste of a good judge.

The Australian test is whether fair-minded people might reasonably apprehend or suspect that the judge might not have applied ‘a fair and unprejudiced mind’ to the case.

• Perhaps, rather than automatic disqualification, automatic disclosure would be preferable, giving opposing counsel the opportunity to object.

• This objective approach is more in line with the general biased test.

A number of test cases followed, since this was the first time that automatic disqualification had been addressed in a case with no direct financial interest in the outcome of the trial.

• Locabail v Bayfield gave more flexibility, making the question not whether the judge has some link with a party involved in a cause before the judge, but whether the outcome of that cause could realistically affect the judge’s interest.

  • Automatic disqualification upon a link would be far too restrictive – all adjudicators naturally have pre-dispositions/opinions/experience.

  • The court held that it was difficult to conceive of circumstances in which an objection of partiality could be based on the religion, ethnic or national origin, gender, age, class means or sexual orientation of the judge.

  • Everything will depend on the relevant facts.

• Held that, if appropriate disclosure have been made by the judge, a party raises no objection to the judge gearing or continuing to hear the case, that party cannot therefore complain of the matter disclosed as giving rise to the danger of bias.

2. The goal to uphold the separation of powers (prohibiting the same person to be involved in more than one element):

This is seen in McGonnell, where it was held that the bailiff had been personally involved in legislative proceedings concerning M’s application.

• Due to this direct involvement in the legislative process, his impartiality was affected.

  • Necessary to focus both on the objective/subjective elements of justice being seen to be done/actually being done.

  • Clear breach in the objective sense, but the Courts...

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