1 When must a fair hearing be provided?

1.1 Introduction

Just as the courts can control the substance of what public authorities do in terms of their substance – e.g. by the rules on reasonableness, improper purposes and so forth – they can also control the procedure by which they do it.

Lawyers (which includes judges) are very procedurally minded, and it is natural that administrators might see the procedures that they put in place as bars to efficiency. It is true that their observance restricts the freedom of administrative action, and costs time and money – but Forsyth argues that the fairness that this engenders means that there will be fewer grievances, appeals and complaints burdening the administrative system. Perhaps, then, rules pertaining to procedural fairness actually increase efficiency rather than impede upon it.

A man may not be a judge in his own cause (the rule against bias) + A man’s defence must always be fairly heard (procedural fairness – the more far reaching of the principles) = Natural Justice.

The rule against bias is a necessary but not sufficient aspect of natural justice. Although a decision maker clearly has to be impartial for a fair decision to be made, the overall goals of procedural fairness can only be secured if that decision maker goes on to apply a decision making process which is itself fair. This aspect is sometimes referred to as the right to a fair hearing.

‘Audi alteram partem’ – ‘hear the other side’. It is fundamental to fear procedure that both sides should be heard. It is unfair to condemn a man without giving him an opportunity to be heard in his own defence: and any agreement or practice to the contrary would be invalid (Denning LJ).

There are two key questions here. When does the law require someone to be given a fair hearing? What does this mean if it is necessary?

Distinguish two traditions:

• Impact-oriented analysis. What is the likely effect of the decision? How important are the rights and interests at stake? The more fundamental the impact, the more likely it is that we will have to ensure a fair hearing is provided.

• Function-oriented analysis. What is the nature of the function? Is it judicial or administrative?

See, eg, Cooper v. The Board of Works for Wandsworth District (1863) 14 CBNS 180; 143 ER 414. Illustration of the impact-oriented analysis.

Someone started building without the necessary planning permission, and the board of works simply came around with a bulldozer and knocked done the half built house. The claimant sued the defendant for trespass, arguing that a right to a fair hearing ought to be implied into the relevant statutory power. The judge said that it was necessary that the person be given such a hearing, and it was clear he came to this conclusion on the basis of the impact that the decision would have on the individual.

The very grave implications that could follow from the exercise of the power – such as the demolition of a person’s house – led Erle CJ to conclude that a duty to comply with natural justice necessarily arose.

Within the impact-oriented analysis, note the conclusionary use of terms such as ‘judicial’, ‘quasi-judicial’ and ‘administrative’. Traditionally, the powers attracting such a duty were called ‘judicial/quasi-judicial’ – but the terms weren’t intended to be descriptive of the nature of the power, but were simply the words used once the conclusion had been reached that the power attracted such a duty. ‘Administrative’ was the word used to describe powers which didn’t have sufficient impact to trigger the duty. The focus therefore was still on the impact as opposed to the function. In particular, consider Wade (1951) 67 LQR 103 at 106:

it was not the power which was judicial, but the procedure which the courts held must be followed before the power could be properly exercised.

But note the courts’ slide into a function-oriented analysis: ‘judicial’, ‘administrative’, etc as functional tests to be applied, rather than conclusionary labels attached to powers. For examples, see Nakkuda Ali v. Jayaratne [1951] AC 66; (Trading licence could be revoked without a hearing) R v. Metropolitan Police Commissioner, ex parte Parker [1953] 1 WLR 1150 (Taxi driver’s licence could be revoked without a hearing. Despite the impact that this would have on his career); Franklin v. Minister of Town and Country Planning [1948] AC 87 (Minister could not be challenged on apparent bias grounds because the minister was not exercising a ‘judicial’ function).

Over time, the courts began to mistake the impact-orientated basis of the distinction. It was decided that where you have issues like the revocation of licenses, this is not something that can trigger the requirement for a fair hearing because that is a purely administrative (in the governmental sense of the word) function.

The impact orientated analysis on the other hand considers the importance of the interests affected, is it important or otherwise interest that the decision impacts? Only the former would attract the right to a fair hearing – only the former would be judicial.

The functions oriented analysis is different in the fact that the ‘judicial’ actually becomes the centre of the analysis. It is not the nature of the right affected that decides whether a fair hearing is due, but the kind of function that is being exercised by the decision maker – administrative or judicial.

The turning point was Ridge v. Baldwin [1964] AC 40 (for comment on which see De Smith (1963) 26 MLR 543; Goodhart (1964) 80 LQR 105; Bradley [1964] CLJ 83). In Ridge, Lord Reid addressed the famous dictum of Atkin LJ in R v. Electricity Commissioners, ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205 to the effect that

the operation of the writs [of prohibition and certiorari] has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, courts of justice. Wherever any body of persons having legal authority to...

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