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Procedural Fairness Notes

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ADMINISTRATIVE LAW - PROCEDURAL IMPROPRIETY

TEXTBOOK
CHAPTER 12 - NATURAL JUSTICE: HEARINGS
I.II.i.RATIONALE FOR PROCEDURAL RIGHTS
Twin rationale for procedural rights as expounded in ex parte Doody:
o Non-instrumental: it enhances the rule of law and and formal justice because it helps guarantee objectivity and impartiality, furthers human dignity by ensuring that individuals are told why they are being treated unfavourably

Instrumental: it contributes to the substantive justice of the outcome by ensuring that the goals behind rules are achieved in each case through allowing the individual affected to present evidence
LIMITS AND REVIVAL OF THE PRINCIPLE OF FAIR HEARING (AUDI
ALTERAM PARTEM)
Some cases since 19C have limited the right to a fair hearing, eg. to only judicial rather than administrative decisions, or to cases where there is a right but a superadded duty to act judicially, but there are indications of a less rigid application of the principle
Ridge v Baldwin
Ridge v Baldwin: HL held that a chief constable dismissed only for cause is entitled to notice of the charge and an opportunity to be heard before being dismissed. Case is important for Lord Reid's (and others') discussion of the principles of natural justice:
o Reviewed 19C caselaw and gave three reasons why it should later become confused:
-Natural justice could only have a limited application in the context of ministerial duties or discretions but courts have applied this limit in other contexts
-Principle had limited application during the War because of special considerations during wartime, but this shouldn't affect natural justice now
-Confusion between rights and remedies led to the requirement of a superadded duty to act judicially before standing is given

Based their decision on 19C caselaw:
-Lord Reid: judicial element in natural justice should be inferred from the nature of the power and its effect on the individual
-Lord Morris: based his judgment on 19C decisions
-Lord Hodson: absence of a lis inter partes was not decisive, nor the characterisation of judicial, administrative or executive act

Thus revived the principle in two ways: Rediscovered 19C jurisprudence that applied the principle to a broad spectrum of interests and wide variety of decision makers
-Disapproved of 20C impediments like lis inter partes and superadded duty
However the case provided little positive guidance as to when natural justice should apply: the closest guidance is that its applicability depends on the nature of the power exercised and its effect upon the individual concerned.o

ii.Natural justice and fairness
After Ridge new terminology developed, like "fairness" or "duty to act fairly", the development of which provoked different views:
o Linguistic rather than substantive distinction: Megarry VC in McInnes said that natural justice was a flexible term which imposed distinct situations encapsulated by the terms 'judicial', quasi-judicial', 'administrative' or 'executive', but the further the move away from 'judicial', the more appropriate the term 'fairness'
rather than 'natural justice'
o Substantive impact: Basis of natural justice is the courts' desire to maintain control over adjudication and impose their own procedures on those subject to judicial control, and therefore it is only applicable to judicial and not administrative action,
and can be relatively fixed and certain. The move towards fairness is therefore a shift in the basis of procedural intervention, so that there can no longer be a single set of rules governing all applications, and courts must engage in a balancing test taking into account the nature of interests and effect of increased procedural protection on the administration.
-Difficulties with the argument:
-Premise (natural justice stemmed from court's desire to maintain control) is mistaken because the major reason for its development is protection of property rights and similar interests
-Argument that only 'judicial' bodies are subject to natural justice is mistaken: it applied as long as the individual's interest is serious enough to warrant procedural protection

III.APPLICABILITY OF PROCEDURAL PROTECTION

A legal system must have criterial for determining the applicability of procedural protection, whether it's cast in the language of natural justice or fairness. These criteria can turn on a number of options:
o Categorization based on nature of the function performed: This was used preRidge in the divide between judicial and administrative function, but it was explicitly disapproved in post-Ridge caselaw because the rationale for this kind of categorization would be predictability and certainty, but it is notoriously difficult to categorize, and even after categorization, the presumption is that the same rules would apply to all in the category, but this is problematic because of the range

matters in each category. So now the court focuses on a judicial v legislative distinction, where the latter matter are not generally subject to natural justice.
o Categorization based on nature of C's interest: Is there some right
(proprietary/personal rights and liberty interests), interest (wider than rights - eg.
licensing cases) or legitimate expectation (future interests that shouldn't be

IV.-

refused without procedural rights (McInnes); to enforce clear and unequivocal representation (AG of Hong Kong v Ng Yuen Shiu); where D has a set of criteria and then uses different criteria in a given case) such as to warrant the applicability of procedural protection?
These criteria employed at common law must now be seen in light of art 6 ECHR, which imposes a duty to provide a hearing where the conditions mentioned are present, when triggered by the existence of 'civil rights and obligations'
o This existence cannot be resolved solely by domestic classification - the ECtHR will make its own autonomous judgment as to whether a dispute involves civil rights and obligations

ECtHR has interpreted the phrase broadly but leaving considerable uncertainty as to the outer limits of 'civil rights' caused by distinctions drawn that are difficult to normatively justify

This difficulty is reflected in UK jurisprudence on Art 6:
-Hussain: A sought judicial review for withdrawal of financial asylum support
-Begum: C offered housing as homeless person, but refused it on the ground that the area in which it was situated suffered from drugs and racism.
-CoA: Laws LJ held that a right was by definition something to which the individual had an entitlement, and a discretionary benefit that the authority can refuse or give cannot itself constitute a right. He accepted that the conception of right was broader than the common law conception of a cause of action, and that the statutory regime obliged the authority to resolve matters on a spectrum between objective and subjective. In such circumstances the existence of a right cannot be determined by a sharp criterion - in this case,
although there was discretion, A had a civil right for the purpose of art 6
-HL: left open the issue of whether A had a civil right for the purpose of art 6, recognizing that ECtHR jurisprudence extended the meaning of civil rights beyond private rights stricto sensu and that the local authority had some discretion under the statute, but this didn't preclude the existence of a civil right.
-Ali: HL decided the issue left open in Begum and held that the legislation didn't give rise to civil rights for the purpose of art 6 - the award of benefits did not constitute a right but depends on a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how they need ought to be met.
CONTENT OF PROCEDURAL PROTECTION: BALANCING
Once natural justice holds procedural protection applicable, criteria have to determine its content under a number of options ranging from an all-embracing procedural code that addresses the matter in detail to ad hoc judicial decisions on a case by case basis (and in between). In the UK a balancing test is used
Balancing test: Factors

A range of factors are taken into account: nature of interest, type of decision challenged, whether tit was final or preliminary, subject matter, etc. are balanced The more important the interest, the greater the procedural protection: Wilson concerned whether someone given the discretionary life sentence was entitled to be told why - decided YES, strongly influenced by the fact that the right to liberty was involved

Example cases:
-Pergamon Press: Inspectors appointed to investigate companies, directors unwilling to answer questions unless given assurances and that a judicial type inquiry was conducted. Inspectors refused - directors claimed a breach of natural justice. CoA disagreed - though there was a duty to act fairly, it wasn't breached because the directors' interest weighed against the administration's interest in confidentiality, speed etc.
-Contrast GCHQ: past practice in operation of GCHQ generated a legitimate expectation that those who worked there would be consulted before important changes were made to the terms of their employment. Govt decision that they could no longer belong to trade unions without consulting them was prima facie in breach of natural justice. But considerations of national security outweighed those of procedural fairness (too deferential?)
o Nature of affected interest impacts on the procedural rights accorded: Evidenced in licensing cases, eg. McInnes held that in the case of forfeiture the individual was entitled to an unbiased tribunal, notice and a hearing, whereas in the case of an application less was required. Renewal was intermediate - the individual may have a legitimate expectation that the license would be renewed, but Megarry VC said that this was to be treated closer to forfeiture than to initial application
Balancing: Causation

Does the applicability of procedural protection depend on the likelihood that the hearing would make a difference to the result in the case?
o A number of authorities say NO, and this is correct ICO because the court is not in a good position to calculate whetehr a hearing would have made a difference, but some courts have looked into the causal link between existence of a hearing and final outcome to 1) deny the existence of natural justice, 2) to influence the discretionary power to grant a remedy and 3) to interpret the concept of fairness as a llowing them to consider whether the decision was fair and reasonable.
Balancing: How much weight to accord to an interest?
o McInnes, Megarry VC: (regarding whether renewal was higher than initial application) as long as we don't engage in rigid conceptualism (regard all renewals higher than applications), ranking is necessary and helpful

Judicial balancing is not necessarily premised on the same assumptions: a law and economics approach (eg Posner: economic approach allows questions to be broken down into objectively analysable inquiries, asking what is the cost of withholding a hearing in a particular type of case (likelihood of error and cost of error)? and then what is the cost of the measure (hearing) that would reduce the error costs? Then we adopt whichever costs lower) is different from a rights-based approach.
-This approach, based on efficiency, ahs been criticized because there are problems of implementing a calculus of this kind, and because substantive rights cannot always give way to utilitarian calculus

Dworkin's 'moral harm' doctrine: we need a system that's not 'pure' cost benefit analysis but recognize that society cannot provide an absolute level of procedural protection that pays no heed to cost. Thus Dworkin's approach recognizes a o- distinction between a 'bare harm' suffered from the punishment, and a further
'moral harm' suffered simply by virtue of the injustice of the punishment. People are entitled to their 'moral harm' being appropriately weighed, and the recognition of this injustice harm factor (even if it's not always appropriately weighed) helps ensure that balancing doesn't undervalue the nature of the individual's interest

V. CONTENT OF PROCEDURAL PROTECTION: SPECIFIC PROCEDURAL NORMS

i. Noticeii.iii.-

iv.-

Denning: If 'the right to be heard is to be a real right which his worth anything, it must carry with it a right in the accused man to know the case which is made against him'
So it is contrary to natural justice to inform someone of only one complaint if there are multiple, or to find him guilty of a different offence than the charge, or to decide on facts that he had no opportunity to rebut, or to decide without giving him reasonable time to prepare his case
Consultation
A statute may impose a duty to consult, and where it does the public body must supply sufficient information to those being consult to enable them to tender advice (though there is no general duty to consult in common law)
Hearing
Type of hearing: Oral hearings are only required where it is necessary for A to be able to present his case effectively, but the hearing must accord A the opportunity to respond to allegations against him (so evidence must be made known to him) though this poses difficulties in anti-terror legislation.
Roberts v Parole Board: C challenged decision that certain sensitive material placed before it by the home office should be withheld from C but revealed to a specifically appointed advocate who would represent C at a closed hearing of the Parole Board.
o Majority of HL held that it was prima facie compatible with natural justice, but
Lord bingham and Steyn dissented - it was contrary to the principle that C should be able to respond to allegations against him, and that the Parole Board had no power to adopt the procedure because of the principle of legality meaning that statutes should be interpreted as not interfering with fundamental rights
Reasons
Advantages in the duty to provide of reasons:
o Assists courts in performing supervisory function

Helps ensure that decision has been thought through by agency

Helps ensure that other objectives of admin law are not frustrated (eg. if courts grant consultation rights in certain cases, reasons will ensure that the decisionmaker didn't just go through the motions of consulting)
Disadvantages:
o Stifles the exercise of discretion -v.
VI.o Overburdens the administration
There is no general duty to give reasons in English law (though there is one in EU law:
art 296 TFEU - and some evidence that where a fundamental EU law principle is in question, there can be a duty in domestic contexts as well) though English common law is moving towards imposing a duty in certain circumstances
Ways that common law imposed a duty in particular circumstances:
o Absence of reasons renders rights to appeal or review nugatory or more difficult :
Doody - Lord Mustill imposed a duty because it would facilitate judicial review challenge by the prisoner

Indirect imposition by labelling the result reached as arbitrary - Padfield adopted this but it was limited in Lornho, where it was held that where there is no duty to provide reasons, the absence of reasons cannot in itself provide support for suggested irrationality. The only relevance of absence of reasons is if all other factors point towards the decision being incorrect then the decision-maker cannot complain if the court finds irrationality in the absence of reasons.
o Courts can indirectly inquire into the reasoning by examining the evidence the decision-maker used and determine whether it justified the finding

In legitimate expectation cases there might be a duty to provide reasons as to why the decision maker departed from the expected course of action
Deciding without a hearing
What can a decision-maker determine without a hearing? Depends on enabling legislation, type of function performed, nature of decision-maker.
The greater the judicial element involved, the more likely the decision-maker must hear
CONCLUSION
Developments since Ridge v Baldwin are to be welcomed, but continuing analysis is required to determine whether the content and application of rules are 'being pitched at the "right" level', for example:
o Argument for a general duty to provide reasons

Improvements necessary in employment relationships and aliens

More attention to understanding the general nature of balancing process within fairness (extent to which it should be viewed as a utilitarian calculus or more dignitarian approach)

CHAPTER 14: NATURAL JUSTICE - BIAS-

Second limb of natural justice: decisions should be made free from bias or impartiality.
Contexts:
o Decision maker has some pecuniary or personal interest in the outcome of the proceedings

Decision-maker is interested in the result of an inquiry or investigation because the institution represented wishes to attain a certain objective
Legal test has now become settled, but the HRA 1998 added a further dimension in that art 6 guarantees a right to a fair trial - the hearing should be by an 'independent and impartial tribunal established by law' I.-

BIAS: PERSONAL INTEREST
Pecuniary interest: Dimes - Court reversed a decision by the Lord Chancellor who affirmed decrees by the Vice-Chancellor concerning a company where the Lord
Chancellor held some shares. No imputation of actual bias, but the principle that nobody can judge his own cause is sacred. Any pecuniary interest, no matter how small, is sufficient: Blackburn J. BUT the interest must be 1) personal (or will be considered as favour) and 2) not too remote or based on contingencies that are unlikely to materialize
(also favour)
Other interests: Other interests (eg. family relationship, business connections,
commercial ties, membership of organization interested in the dispute etc.) can disqualify decision maker if the court finds that the interest gave rise to a reasonable suspicion of real danger of bias

II.-

BIAS: INSTITUTIONAL
Prosecutor and judge: if the prosecutor is also the judge (decision cannot stand: Shaw),
or if the decision-maker belongs to an organization that initiated the proceeding though he himself took no part in the decision to prosecute (whether decision will stand depends on whether on the substance and facts, the decision maker can be accused of bias:
Leeson)
Institutional opinion: if the decision maker has strong preconceived opinions, this is different from prosecutor and judge but must also be assessed for bias

III.-IV.BIAS: THE TEST

In bias other than pecuniary (where a pecuniary interest will by default suffice), two tests have developed: 'real likelihood of bias' and 'reasonable suspicion of bias'. In 19C the more stringent test held sway, but the 'reasonable suspicion' test was adopted in ex parte McCarthy (1924) though shifted back to 'real likelihood' in ex parte Pearce (1955)
and Barnsley Licensing (1960) which explicitly disapproved of McCarthy formulation.
However in Lannon (1969) Lord Denning rescued the McCarthy test but proceeded to talk about real likelihood.
Then Gough attempted to clarify and said that the test is whether there is a real danger of bias from the perspective of the reasonable man, but this test was criticized and HL
indicated that it might review it, which it did in Porter
Porter test: whether, having regard to the relevant circumstances, as ascertained by the court, the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. This test was applied subsequently.
BIAS: EXCEPTIONS
Necessity: normal rules of bias displaced where the person accused is the only person empowered to act (eg. Dimes, Phillips)
Statute: Parliament has enacted exceptions - eg. allowing jsutices to sit who have some interest in thesubect matter (eg. Shaw)
Waiver: The individual can waive the interests, either expressly or impliedly

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