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Procedural Fairness Reasons And Expectations Notes

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Administrative Law: Procedural fairness, Reasons and Legitimate Expectations 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 determine questions affecting the rights of subjects, and having the

duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Ridge v. Baldwin [1964] AC 40 Chief Constable was suspended following his arrest. He was acquitted but there were critical comments against him made by the judge. The committee made the decision to dismiss - but he was not given a fair hearing (he wasn't even present at the dismissal meeting). It was held that there was a breach of natural justice. However, in reaching its conclusion the court had to consider the judicial/administrative dichotomy. The HL said that the courts had taken a wrong turning and that this could be traced back to Atkin LJ in the Electricity Commissioners' case. Later, Lord Hewart CJ in R v. Legislative Committee of the Church Assembly, ex parte Haynes-Smith [1928] 1 KB 411 said that: In order that a body may satisfy the required test [ie the test in the Electricity case] it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present. Having set out these passages in Ridge, Lord Reid said of the latter:
[T]his passage ... is typical of what has been said in several subsequent cases. If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities ... And, as I shall try to show, it cannot be what Atkin L.J. meant. Lord Reid held that some cases, such as Haynes-Smith and Nakkuda Ali, had interpreted Lord Atkin's speech in Electricity Commissioners to mean that the duty to act judicially was a prerequisite for the application of the rules of natural justice, rather than a consequence of their imposition. Lord Reid said that in actuality, Atkin had 'inferred the judicial element from the nature of the power' - and that this was therefore the correct approach. Ridge suggested that the way forward was that a duty is imposed when the effect of a decision was such as to require adherence to natural justice. There was a reinstatement of the impact-orientated analysis, meaning a duty (a 'duty to act judicially') could be imposed in wider circumstances than the mistaken approach allowed.

1.2 Natural justice and acting fairly

What change did Ridge institute?
It isn't necessary to know the whole history for the purposes of exams, even though W&F goes into some detail. Ridge was useful in that it sorted out the confusion created by the artificial use of the word 'judicial' to describe functions which were in reality administrative, but it did not eliminate this misnomer from the law. While it placed renewed emphasis on the impactoriented approach to when courts should impose a duty to provide a fair hearing, it still phrased the duty in the conclusionary language of a 'duty to act judicially'.

?

Continued relevance of 'duty to act judicially'. The notion of 'a duty to act judicially' was perpetuated by Ridge, but the duty could be inferred from the nature of the power - and hence much more readily.

But what if no duty to act judicially could be implied? What about cases where it seemed appropriate to require a measure of focus, but that the impact of the decision was not such that it generated an obligation to go the whole way and act 'judicially'?But note circumstances in which such a duty could attach post-Ridge. Questions still remained about how far the duty could extend.

What of situations in which no 'duty to act judicially' could be found? Consider the following remarks of Lord Parker CJ in In re HK (An Infant) [1967] QB 617 at 630:
... [E]ven if an immigration officer is not in a judicial or quasi-judicial capacity , he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection , and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi judicially. Lord Parker here contends that the rules of natural justice, i.e. a 'duty to act fairly' could apply beyond the category of cases (already extended by Ridge) in which a 'duty to act judicially' arose. The latter is a (more prescriptive) subset of the former. Even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must nevertheless act fairly. The implicit acceptance of the difference between the two duties led some judges to continue to place significant weight on the administrativejudicial dichotomy (e.g. Pearlberg). Did this perpetuate an administrative/judicial dichotomy? (Duty to act fairly/duty to act judicially?) See, eg, remarks of Lord Pearson in Pearlberg v. Varty [1972] 1 WLR 534 at

547. In Re HK and Pearlberg suggest that one of two situations will be present:?

Duty to act judicially. (Rules of natural justice apply) No duty to act judicially. (Duty to act fairly may apply. e.g. Immigration Officer in Re HK).

However, cf Megarry VC's more flexible use of language in McInnes v. Onslow-Fane
[1978] 1 WLR 1520 at 1530. In Mckinnes, there emerged an approach which viewed the situations as appearing on a spectrum - taking a context-sensitive approach to the duty to act fairly. 'Fairness' is a broad principle whose precise meaning falls to be determined in context, on a sliding scale which does not require clear distinctions to be drawn between 'judicial', 'quasi judicial' and 'administrative' powers. The upshot is that whether or not a 'duty to act judicially' arises, the decision making power is

likely to be accompanied by an obligation to respect certain procedural norms, determined in their intensity by the context.?This approach says that any decision that affect rights will generate the duty to act fairly, and then it must be asked to what extent that should be applied. The focus shifts from the first stage to the second - we increasingly ask to what extent the duty applies, not whether it applies in the first place. The context sensitive duty to act fairly extends from trial-esque procedural protections to more modest protections.

W&F: It is now settled that there is no difference between 'natural justice' and 'acting fairly', but they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case. Consider the following academic opinions on the emergence of a flexible conception of fairness:Cane, Administrative Law (Oxford 2004) at 161: an unimaginative conception of fairness?Mullan (1975) 25 UTLJ 281: flexibility to be welcomed?Loughlin (1978) 28 UTLJ 215: a recipe for uncertainty and inappropriate interventionism?

1.3 Legitimate expectations and Article 6 ECHR

Note relevance of legitimate expectations (see below) to existence/content of duty to act fairly. There might be legitimate expectations of fair treatment - triggering a duty even where it may not be necessary on the above principles. See, eg, Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 (discussed in lectures on legitimate expectations). There were illegal immigrants into Hong Kong, told that they were going to be deported without any kind of fair hearing. The case made it to the Privy Council, who assumed that but-for any arguments based on legitimate expectation, there would be no free-standing duty to act fairly, but thanks to the promise that was made and the expectation it gave rise to, the immigrants were actually entitled to quite a high level of fairness. Legitimate expectations are therefore a factor that can impact on whereabouts on the continuum an individual case will fall in relation to the duty to act fairly. The doctrine of legitimate expectation can influence (a) the scope of the duty to act fairly, by triggering it in circumstances in which the duty wouldn't arise on the principles considered above (e.g. Ng Yuen Shui); and (b) the content of the duty, by in some circumstances requiring a higher level of procedural protection founded on expectation than an individual would normally be entitled to (e.g. oral vs. written representations). Note also obligation to comply with Article 6 standards where decision involves determination of civil rights and obligations (on which see earlier lectures on bias). Article 6 says that where it applies, there is a single procedural model that needs to be followed - and it is often more than is normally required by the common law. Where it is

invoked however, there might be more required by decision makers. But bear in mind that: (a) it only applies in a relatively narrow range of cases; and (b) that there are cases where the common law in any event would require a standard of fairness just as high as Article 6. Whether it is worth a claimant arguing it then depends on the treatment of their individual situation by the common law.

1.4 The limits of procedural fairness

Limiting factors:Absence of trigger factor - nothing to trigger the duty on an impact oriented analysis.Legislative displacement (eg Wilkinson v. Barking Corporation [1948] 1 KB 721) But there may be judicial reluctance to read the statute in this way. They will need clear evidence that that was parliament's intention.Contextual obstacle (eg Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 [The GCHQ case]; R v. Secretary of State for Home Affairs, ex parte Hosenball [1977] 1 WLR 766) In GCHQ duties concerning national security may blunt or displace the duty to act fairly. GCHQ were held to operate in a very sensitive context where it was inappropriate for the court to impose consultation as a procedural safeguard, on the grounds of national security.Urgency (but cf R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] IRLR 679). Director of Children's' Services at Harringate was dismissed very soon after the revelation of details surrounding Baby P. The court suggested that the need to protect vulnerable children may impact on the requirement for procedural fairness. It also said however that whether this is true depends on the exact circumstances of the case and in this case it wasn't enough. There was limited urgency - the dismissed social worker wasn't a front-line social worker. If it had been a situation where a person with contact to children had been accused of pedophilia, it might be legitimate to dismiss them and ask questions later - but this wasn't a case analogous to that.

What if a fair hearing 'would make no difference'? Should no such hearing be legally required in such circumstances? Whether this argument succeeds depends on the view the court is adopting. See comments of Lord Wilberforce in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 and Brandon LJ in Cinnamond v. British Airports Authority [1980] 1 WLR 582. In Malloch, Lord Wilberforce adopted an instrumental analysis, which sees fairness as a means to an end. If we can be confident that the decision would be affected with or without a fair hearing, we shouldn't require it - in fact there is a positive economic argument against it. But note arguments against this view (usefully summarised by Bingham LJ in R v. Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344 at 352), including:Practical argument: John v. Rees [1970] Ch 345, per Megarry J The difficulty with this view is that often the only way to tell if it would make a difference is to have a fair hearing in the first place. If we do apply this methodology, it needs to be a truly, irrefutably open and shut case. But

Megarry J once said that the law is strewn with such cases that turned out not to be open and shut. (John v Rees).Instilling a culture of fairness: Clark [1975] PL 27 at 60Importance of perception of fairness: R v. Thames Magistrates' Court, ex parte Polemis [1974] 1 WLR 1371 at 1375-6, per Lord Widgery CJ. It might be worth sticking to procedural fairness for systemic reasons if only for the perception of fairness this generates. This is an instrumental analysis. There are still reasons, then, to question whether this 'makes no difference argument' cuts much ice. Instrumental and non-instrumental views of fairness. The noninstrumental, or normative view would say that fairness is not (just) a means to an end. If you are subject to a decision affecting some fundamental aspect of your life, and you are never invited to play any part, or have any say in that decision then that speaks volumes about the way the state perceives you. The normative view says that individuals deserve fair hearings, as it respects your dignity.For recent judicial discussion of this point, see: R (National Association of Health Stores) v. Department of Health [2005] EWCA Civ 154 at [21]-[22], per Sedley LJ. There were restrictions on the supply of a natural herbal remedy, 'kava kava'. The DoH consulted on the possibility of an outright ban vs. making it prescription only, but not on the prospect of compulsory labelling. The remedy was banned outright, and the association applied for review on the basis of a lack of procedural fairness, because compulsory labelling wasn't considered. Sedley LJ said that it was necessary to take the 'makes no difference' argument with caution. However, what we had in this case was a 'laboratory example' of a case in which it was appropriate. The court was absolutely certain that the contended for procedure would have made no difference - the compulsory labelling option was less draconian than the rejected prescription-only option. Secretary of State for the Home Department v. AF (No 3) [2009] UKHL 29 [2009] 3 WLR 74 Lord Phillips explicitly endorsed an instrumental view of the importance of fair procedure - we should ensure that the outcome is the best one. In principle then a decision maker could lawfully refuse to supply a fair hearing on the basis that it would make no difference. He does however suggest that even on the instrumental view the 'makes no difference' argument will rarely hold much ground - because for a variety of practical reasons (see above) it will very rarely be the case. R (National Association of Health Stores) is one of those cases. Osborn v. Parole Board [2013] UKSC 61. The purpose of holding an oral hearing is not only to assist in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him. The question about whether the prisoner should have an oral hearing is different from the question of whether he has a likelihood of being released, and it cannot be answered by assessing that likelihood. Lord Reed here endorses a noninstrumental, normative view. The most that we can say is that judges at a high level seem to express different views
- but they all say that the 'makes no difference argument' does not have much weight. If it does work, it will work very rarely.

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