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Proceedural Fairness Notes

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NATURAL JUSTICE Natural justice is concerned with how a decision is made (procedure), not the outcome / reasoning. If the procedure does not comply with natural justice, then the court will quash a decision. Normative basis for the doctrine:
? Instrumental: Procedures are not valuable in their own right, but are instrumental to other goods: o Proper procedures will allow the DM reach the right decision. Utilitarians stress the link between the grant of procedural protection and the quality of substantive outcomes. o Allows for public participation in the decision making process
?????Non-instrumental: there is an intrinsic value to proper procedures. o Proper procedures protect human dignity; allowing people a right to a hearing and an unbiased tribunal treats them with dignity o Rule of law: proper procedures ensure that public bodies comply with the law. o Justice must be seen to be done: proper procedures enhance public confidence in administrative /
judicial systems. Should we be concerned with fair procedure or just fair results tenable?
? Lord Phillips in AF [2009]: "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." His point is that we are concerned with procure because of its impact on the result of the decision. o Although this assumes an instrumentalist view of natural justice.
? Does a fair procedure deliver better decisions? While natural justice has always been applied to judicial decision making, it has now expanded to cover administrative decisions carried out in a quasi-judicial way. Risk is it will lead to the 'judicialisation' of administrative procedures. o Also the risk that procedural justice requirements are expensive and will divert public bodies resources away from other areas.
? Denning in Evans suggests that the duty to act fairly may have such wide implications as to go beyond procedure. He notes that "the decision itself must be fair and reasonable." However, Lord Hailsham noted "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:
?? ? ?Duty to give a fair hearing: right to know the case against you / respond to that case. o Protected interests o Content of fair hearing o Duty to give reasons
?? ? ?The rule against bias: DM should not be biased / appear to be biased o Participation of biased person o Preconceived views The content of natural justice rules can vary greatly --- their application is influenced by three factors:
? Importance of the interest infringed
? The value to C of the procedural right
? The cost of providing the procedural safeguard.

When the court is considering a non-core procedural rights (e.g. right to cross examination), it will balance these factors. But core procedural rights (e.g. right to an unbiased trail) will apply automatically. FAIR HEARING: First developed in
? Ridge v Baldwin [1946]: police officer dismissed without notice of case against him / opportunity to be heard. HL: decision was void for violating rules of natural justice. They rejected the notion that the rules of natural justice could only apply to decisions of quasi-judicial bodies, C must at least: (i) know the case against him; (ii) have the opportunity to be heard by the decision maker. Context is everything in determining the content of a fair hearing : its core requirements are laid out in Ridge --- C must know the case against him and be able to respond to it --- but the specific application and intensity of those requirements varies depending on the nature of the case.
? Re HK [1967]: immigration officer determined that C was over 16 and therefore should not be allowed to remain in the UK. CA: this decision was an administrative one and not a judicial / quasijudicial one --- given the conditions in which airport immigration officers work, having to make onthe-spot decisions, there were limits to the time he could invest in processing / investigating a case. In this case natural justice required him to "act fairly".
? Ex p Doody [1994]: HS had the power to determine length of life-sentences of prisoners. Prisoners argued HS had to tell them reasons for differing from the judge's recommendation. HL: accepted the Cs argument. Prisoners had to be informed of reasons and given an opportunity to make representations. Lord Mustill: what procedural justice demands will vary from case to case, depending on context. A key factors is the statute conferring the discretion. In setting the correct standard, the court has to be careful --- there is often a need for informal procedures (where economy / expediency is needed, as in HK). Thus, in Bushell [1980] the HL found there was no right to cross-examination in a motorway planning inquiry:
? Lord Diplock: to 'over-judicialse' the inquiry would not be desirable --- it would be unfair given that parties may which to make representations without the expense of legal representation.
? Lord Edmund-Davies (dissent): refusal of cross-examination is "clearly wrong" because the inspector, here, was performing quasi-judicial duties and must, do so in accordance with NJ. Thus, where a body make as quasi-judicial decision it will come under the full duties of natural justice, but where the decision is administrative (i.e. HK) less stringent duties will be imposed. There is, a sliding scale between the full duties of natural justice and a more general duty of 'fairness'.
? McInnes v Onslow Fayne [1979]: C's application for a boxing licence was refused without oral hearing / reasons for D's decision. Megarry VC: D's decision was valid --- he was under a duty of fairness to reach an honest decision without bias and not in pursuance of a capricious policy, but there was no obligation to give C reasons. Three types of decision made by public bodies: o Forfeiture cases: where C is deprived of a right / position. C is entitled to a high degree of procedural protection. o Legitimate expectation cases: C seeks the continuation of a certain right / renewal of one. Here C has some expectation that a right will be granted and C is entitled to hear the grounds of refusal and must be allowed to reply. o Application cases: where a new right is sought, the DM must merely 'act fairly'.

Megarry notes that the requirements of NJ should not make unreasonable requirements / impose undue burdens on DMs. The law should not coerce DMs into granting rights by facilitating litigation against it under the principles of natural justice. o "The further the situation is away from anything that resembles a judicial or quasi-judicial situation, and the further the question is removed from what may fairly be described a justiciable question, the more appropriate it is to reject an expression which includes the word justice, and to use terms such as fairness and duty to act fairly." In McInnes we get a sliding scale of requirements based on the right / expectation held by C. The courts will, in some circumstances, construe ouster clauses attempting to eliminate the duties imposed by procedural fairness narrowly --- i.e. in the following a statute only excluded reasons not notice.
? Al Fayed [1997]: Home Secretary rejected C's application for naturalisation. Statute stated HS did not have to give reasons. CA: HS breached the requirements of procedural fairness. Although HS did not need to give reasons, per the statute, procedural fairness demanded he give C notice of his concerns about Ds applications and provide him with an opportunity to respond. If natural security concerns meant that HS could not give C specifics, he should tell him so, so that C can challenge such a determination in court. ORAL HEARINGS When will the courts find that procedural fairness demands C receives an oral hearing rather than the opportunity to make written representations? Again dependent on context.
? Lloyd v McMahon [1987]: auditor made a determination that Counsellors should pay Liverpool Council over a PS100k for loss caused by Counsellors mistakes. HL: it was sufficient that they had had the opportunity to make written representations --- no need for an oral hearing. o Lord Keith: "The true question is whether [D] acted fairly in all the circumstances. It is easy to envisage cases when an oral hearing would clearly be essential in the interests of fairness." o Lord Bridge: "The so-called rules of natural justice are not engraved on tablets of stone...
what the requirements of fairness demand... depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework within which it operates".
? R(Smith) v Parole Board [2005]: prisoners were returned to jail after having been granted parole without the opportunity to make oral representations. HL: the Parole Board breached the duty of procedural fairness in failing to offer C an oral hearing. o Lord Bingham: in deciding what procedural fairness demands the court must take account of the interests at stake, here the safety of the public and C's liberty. An oral hearing will be obviously necessary in cases where the facts are in dispute, but will arise in other cases --- e.g. where the facts require explanation / mitigation, or an assessment of C's risk to society would be greatly assisted by hearing from C.
? R(Obsbourne) [2013]: same facts as Smith. SC (Lord Reed): Cs had the right to oral hearings. Although it is impossible to lay down universal rules an oral hearing should be held where: (i) there is a factual dispute; (ii) need to assess prisoner's characteristics; (iii) needed to test the views of those opposing C's position; (iv) where it would be unfair to allow a paper decision to become final
--- e.g. where it has a significant impact on C's future. o Functions of oral hearings: (i) it respects human dignity by avoiding the sense of injustice that arises when C cannot participate in a decision with great implications for him; (ii) it upholds the

rule of law by "promoting congruence between the actions of decision-makers and the law which should govern their actions"; (iii) it results in better decisions and ensures the DM receives all relevant information. (i) and (ii) mean that it may be 'fair' to hold oral hearings even where it may not assist the Board in reaching its decision. o Relevance of cost: Board should guard against viewing oral hearings as saving time / money: "procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear." He cautions against being penny-wise / pound foolish. Note, in Lloyd and Smith the court focus on instrumentalist rationales for oral hearings --- i.e. they are necessary where they would substantively improve the chances of reaching a better decision (due to the opportunity to discover facts / assess C). But in Osbourne Lord Reed backs non-instrumentalist functions, recognising that oral hearings respect human dignity --- he doesn't take this to its full conclusion, however, as this would require oral hearings in all cases, but makes clear that it is a factor. Osbourne took a strong approach to common law rights, deciding it on that basis, despite hearing an argument that C's Art. 6 ECHR rights were infringed. This approach was expanded in Kennedy. However, it is clear that the requirement of a fair hearing can engage Art. 6.
? R(Wright) v Health Secretary [2009]: Cs were put on a list of people unsuitable to work with children under a state which made no provision for the HS to accord them an oral hearing. The move to the list was temporary and a hearing would be granted before placing them on a permanent list. HL: made a declaration of incompatibility under s.4 HRA --- lack of hearing breached Art. 6 o Lady Hale: although temporary, the ban would have serious stigma for C. A lack of oral hearing could only be justified if there was an immediate need to protect vulnerable adults for harm. Here the restrictions imposed were so great as to prevent them from being rendered proportionate by the urgency of the situation. Wright illustrates the strength of the duty to conduct an oral hearing where the decision has very serious consequences for C. There would have been an oral hearing after six months, determining C's addition to a permanent list, but this was not enough. CLOSED MATERIAL PROCEDURE AND SPECIAL ADVOCATES Particular issues arise in relation to the application of natural justice / procedural fairness in cases involving national security. The first basic requirement of natural justice is that C knows the case against him. National security cases will normally involve a CMP and control orders may be placed on C without him knowing the evidence against him. C is represented instead by a special advocate. Closed material procedures: CMP clearly violates the rules of natural justice --- the question is whether it can be justified. This intrusion is heightened because CMPs apply to judicial decision making --- and, as illustrated in Re HK judicial decision making requires more stringent NJ requirements. There is disagreement at the highest level of the judiciary as to whether natural justice confers an 'irreducible' core right to know the case against you (i.e. disclosure) that cannot be infringed in the absence of clear statutory wording. This has been played out in several key cases:

AF [2009]: control orders placed on C under the Prevention of Terrorism Act, using CMPs. HL: lack of disclosure violated Art. 6 and the provisions must be read down under s.3 HRA.
?????Lord Phillips: need to consider the ECtHR's judgment in A v UK [2009]: a special advocate can only counterbalance the lack of full disclosure where "the detainee was provided with sufficient information ... to enable him to give effective instructions to the special advocate." Phillips: following A a special advocate will not be sufficient where "the open material consists purely of general assertions and the case against C is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied." This is so even if such disclosure cannot affect the result --- this is so because the court cannot be sure that disclosure will not affect the result and because it: (i) respects human dignity by avoiding the sense of injustice that arises when C cannot participate in a decision with great implications for him; (ii) improves confidence in the justice system; to have confidence the people must see that justice is done.
? Lord Hoffmann: reluctant to apply the ECtHR's judgment, but did not dissent. He felt it drew too firm a line, risking the system of control orders which is a key part of UK's defence against terrorism. Where it is clear disclosure would be highly unlikely to make any difference to D reaching the right decision, the public interest in security may outweigh C's feelings of injustice from lack of disclosure. Lords Phillips and Hope clearly thought the disclosure rule is an irreducible core of natural justice protection that cannot be outbalanced by national security or other concerns --- indicating that the ECtHR's approach is right in principle and that a similar right exists at common law. However, Lord Mance's position indicates no such 'irreducible' CL right exists, with the rule an imposition by the ECHR. The 'irreducible core' position was taken in Al Rawi, but undermined by Tariq and Bank Mellat:
? Al Rawi [2011]: could a CMP be adopted at CL in a civil claim for compensation by detainees at Guantanamo (argued government was complicit in their unlawful detention)? SC: CMPs are only permissible under statutory authority. o Lord Dyson: "CMPs involve departure from principles of open and natural justice, essential to common law trial." Although courts have the power to regulate their own procedure, they cannot exercise this power so as to deny parties their common law right to a fair trial. o Lords Mance, Clarke, and Lady Hale dissent: the court has the power to order CMPs in certain circumstances, but disagree as to what those circumstances are.
? Tariq [2011]: did Art. 6 (and A v UK) require disclosure in CMPs used during employment tribunal hearings? CA: yes, this is an absolute minimum requirement under Art. 6. SC: distinguished A v UK as only applying where D's liberty is at stake. In other cases, the question is simply whether the CMP would impair the very essence of the right to a fair trial; here, that right is not impaired because T's claim would be decided by an independent / impartial tribunal o Lord Mance "the balancing exercise A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim." o Lord Dyson: "discrimination [at issue here in an employment context] is a less grave invasion of a person's rights than the deprivation of the right to liberty." o Kerr (dissenting) failing to disclose key information is a breach of C's fundamental common law right to a fair trial, the removal of which can only be accomplished by a clear statute.


Bank Mellat [2013]: Could CMPs be used in the SC? The Counter Terrorism Act 2008 provided for their use in the High Court and CA, but the SC was not mentioned. Al Rawi suggested that there is no CL power to adopt CMPs --- it can only be granted by statute. SC: SC can adopt CMPs. o Lord Neuberger (majority --- with Hale and Clarke, dissenters in Al Rawi): CMPs are contrary to the fundamental principles of NJ, however, the SC should be able to hear CMPs. This follows by implication from the Constitutional Reform Act 2005, which states SC can hear 'any appeal'. If the SC could not use CMPs then they may not be able to hear some appeals (contrary to the act) or risk injustice. o Lord Hope (minority): nothing short of clear statutory wording could limit the right to a fair trial --- he rejects the majority's approach using the CRA 2005 "a point of such fundamental importance cannot be left to implication." Further, the right to know reasons has 'even more force at the stage of final appeal, as once the SC has given its reasons in a closed judgment there will be no opportunity for any further review. Secret justice at this level is really not justice at all."

In Bank Mellat Lord Neuberger abandoned the 'irreducible core' rights-based approach to CMPs taken in AF and Tariq and focused on pragmatic arguments that the SC had jurisdiction to hear CMP cases. Principle of open justice: Note that CMPs also violate the principle of open justice, enumerated by Lord Reed as fundamental to the rule of law and democratic accountability:
? A v BBC [2014]: in the course of proceedings to deport a sexual offender, an order was made under the Contempt of Court Act, preventing the media from revealing D's identity. The BBC challenged this order and one issue was whether they should have been allowed to make representations before the order was made. SC (Lord Reed): o Open justice is a general principle of constitutional law (as an aspect of the rule of law)
--- public scrutiny is a key factor in keeping the courts accountable and since the media are a "conduit" facilitating such scrutiny, "the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings." o Exceptions to the principle of open justice: in rare cases the courts can exclude press and the public, but only if necessary to achieve justice and if the degree of privacy was kept to a minimum --- e.g. where full application of the principle may lead to endangering the life of a witness. Departure depends on context and the courts will carry out a fact-specific balancing exercise, focusing on: (i) purpose of open justice principle; (ii) value of information at hand in advancing that purpose; (iii) the risk of harm disclosure would cause. o ECHR and common law: although ECHR standards apply in this context (open justice is expressly protected by Art. 6), authorities (Al Rawi, Bank Mellat, Kennedy) show that the CL principle of open justice is "vigorous." CL rights should be the starting point. Special advocates Special advocates in CMP cases have access to the closed material, but cannot communicate it to their clients. They can take instructions, but usually can only communicate in writing and with the court's permission after the evidence has been seen. Chahal v UK [1997]: ECtHR: CMPs could be used provided that counterbalancing procedures ensured C was accorded a "substantial measure of procedural justice." They suggested, based on a Canadian model, that special advocates would be a good way of ensuring such 'substantial procedural justice'.

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