Admin Law - Fair Procedures

Question 1

Central Issues - overview

Answer 1

1. 3 ways individuals can be affected by governmental action.
2. Process rights: two ideas, based on natural justice.
3. Criteria for natural justice to be applicable.
4. Content of process rights
5. Types of process rights
6. Rationales for natural justice

Question 2

Central Issues - 3 ways individuals can be affected by governmental action

Answer 2

1. Primary Legislation
   -No need for formal consultation of individuals, although government will often consult on proposed legislation.
2. Rulemaking
   - Delegated legislation or administrative rules; common law rules concerning process rights to not apply to rule making.
3. Adjudication
   -Individualised act addressed to a particular person or persons; this is where common law process rights come in.

Question 3

Central Issues - Process Rights: 2 ideas, based on natural justice

Answer 3

1. Right to a fair hearing (audi alteram partem): the individual should be given adequate notice of the charge and an adequate hearing.
   >A general principle with wide application
   - Lord Loreburn in Board of Education v Rice [1911]: the right applies “to everyone who decides anything” but the manner in which a case is decided did not have to be the same as an ordinary trial.
   > Cooper v Wandsworth Board of Works: demolition powers of the Board were subject to notice and hearing requirements despite lack of positive words in statute as the duty is imposed by the common law.
2. The adjudicator should be unbiased.

Question 4

Central Issues - Criteria for natural justice to be applicable

Answer 4

> Existence of a right, interest or LE..
The common law criteria have been complemented by Art. 6 ECHR.

Question 5

Central Issues - Content of process rights

Answer 5

> Can vary from a full set of process rights that approximates an ordinary trial to something more modest.
Influenced by 3 factors:
1. The importance of the right infringed.
2. The value to C of that process right.
3. The cost of providing the additional procedural safeguard.

Question 6

Central Issues - Types of process rights

Answer 6

1. Adjudicatory process rights
   - Modelled after procedures in ordinary courts but modified in their application to administrative bodies.
2. Non-adjudicatory process rights
   -May be more suitable for other types of decision-making.

Question 7

Central Issues - Rationales for natural justice

Answer 7

> Instrumental rationale:
-To ensure the correctness of the outcome of the case.
-E.g. the goal is to give out liquor licenses only to those of good character, giving a person a hearing before reusing a license can ensure that the goal is correctly applied.

> Non-Instrumental Rationale:
-To promote the rule of law in its formal sense by ensuring objectivity & impartiality.
-Protecting human dignity by ensuring that the individual knows why she is treated unfavourably, enabling her to take part in the decision making.
-As stated in Doody by Lord Mustill: Prisoner would want to know about the reason for his life sentence due to (1) an obvious desire to know about a decision gravely affecting him, (2) find errors to persuade the SoS to change the decision or to challenge it in court.
-The content of natural justice may vary depending on whether one accords primacy to instrumental or non-instrumental considerations.

Question 8

Development of the fair hearing principle - overview

Answer 8

1. The principle was limited in the first half of the 1900s.
2. Revival of the principle.

Question 9

Development of the fair hearing principle - the principle was limited in the first half of the 1900s

Answer 9

1. Exclusion of administrative acts
   >Errington v Minister of Health [1935]
   -Facts: Minister conferred with local authority and received further evidence after the close of a public inquiry.
   -Judgment: CA found that there was a breach as the minister was acting quasi-judicially due to the ‘triangular’ situation where the minister was deciding a legal action between the local authority and objectors.
   >It was once thought that for certiorari to be available there would have to be not just a determination affecting rights of individuals but a duty to act judicially would also have to be inferred as in Haynes Smith:
   -This view was extended in Nakkuda Ali v Jayaratne [1951] to mean that natural justice itself would not be available where such a duty to act judicially was not present.

> Certiorari: order issued by a court to review a decision of a lower court or public authority.

Question 10

Development of the fair hearing principle - Revival of the principle

Answer 10

> Ridge v Baldwin
-Overruled the requirement of a duty to act judicially for the principle of natural justice to apply.
-Held that limitation on the principle cases dealing with wider duties exercised by ministers affecting a wide range of public interests do not apply in the current case.
-Restrictions on the principle during wartime due to special considerations as the need for speed are not currently applicable.
-Held that the older jurisprudence in the 19th century was applicable to the current case.

Question 11

Fairness - General

Answer 11

> The term fairness and ‘duty to act fairly’ was first introduced in this context by Lord Parker CJ in Re H.K.
Different usages of fairness:
1. A linguistic distinction.
2. It is a substantive distinction.
Different interpretations - the implication of fairness.

Question 12

Fairness - Different usages of fairness

Answer 12

> Natural justice as a manifestation of fairness.
Natural justice is applicable to judicial decisions while fairness is for administrative or executive decisions.

1. A linguistic distinction
   >Megarry VC in McInnes: natural justice is applicable to a whole range of decisions, judicial, quasi judicial or executive. But the further that one moved away from anything resembling a judicial or quasi-judicial situation, the more appropriate it became to use the term fairness rather than natural justice.
2. It is a substantive distinction.
   >The basis of natural justice was for ordinary courts to maintain control over adjudication by imposing their own procedures, thus the requirement that the function of the bodies controlled to be judicial in nature.
   -The content of rules would be relatively fixed.
   >The shift to fairness indicates an expansion of procedural intervention beyond adjudicative settings.
   -There are no longer fixed standards and the court is forced to undertake balancing of the individuals’ interest and the effect of increased procedural protection on administration.
   >Craig’s rebuttal to this view.
   -The rationale for natural justice is not to maintain control over adjudication but to protect property rights and other rights akin thereto.
   -The requirement of ‘judicial’ nature was automatically held to be satisfied when the interests of individuals were severely affected.
   -Courts also explicitly or implicitly conducted balancing operations.

Question 13

Fairness - Different interpretations of the implication of fairness

Answer 13

1. It fits within the adjudicative framework (process rights are modeled after court procedures) not necessitating the development of non-adjudicative procedures.
2. It introduces a broader concept of procedural fairness which would lead the courts to recognise procedures found in mediation, arbitration, contract and managerial decisions outside of classical adjudication.

Question 14

Applicability of natural justice - general

Answer 14

1. Applicability based on categorisation.
2. Whether there is some right, interest or legitimate expectation deserving of procedural protection.
   -Art. 6 ECHR.

Question 15

Applicability of natural justice - applicability based on categorisation

Answer 15

> Prior to Ridge, an administrative-judicial dichotomy was drawn to determine the applicability of natural justice.
Rationale:
-Certainty & predictability.
-However, it is difficult to decide whether a case should be categorised as judicial, administrative, executive etc.
The assumption is that the same rules are applicable for all cases in each category.
-However, the range of matters within each category is vast & the same set of rules might not be appropriate.
Rules of a legislative nature are generally not subject to natural justice: Bates v Lord Hailsham [1972], but subject to exception.

Question 16

Applicability of natural justice - rights deserving of procedural protection.

Answer 16

> Rights.
-Challenged action affects the right of the applicant.
-Real property rights: Cooper (1863)
-Personal property rights such as an office which can be regarded as personal property: Bagg’s case (1615); Osgood (1872).
-Loss of liberty: R v Parole Board Ex p Wilson [1992].

Question 17

Applicability of natural justice - interests deserving of procedural protection.

Answer 17

> Cases concerning natural justice in the context of clubs, unions & trade associations involve the applicants with interests rather than rights affected.
Licensing & aliens.
The absence of a substantive right/substantive protection may well render procedural rights even more important: Lord Wilberforce in Malloch v Aberdeen Corporation [1971].
-E.g. an office held at pleasure should not lead to denial of procedural right.

Question 18

Applicability of natural justice - legitimate expectations deserving of procedural protection.

Answer 18

1. First way in which it arises.
   >The court is protecting an important future interest not presently held.
   >It is a legitimate expectation that an interest would be granted.
   >Megarry VC defined the class of cases:
   -Applicant is a licence holder who was seeking the renewal the licence.
   -Preson was elected to a position and seeking confirmation of the appointment form a different body.
2. Second way: clear & unequivocal representation.

> Representation could provide the foundation for procedural rights.
-In the absence of the representation the substantive interest by itself would not entitle the applicant to natural justice.
-AG of Hong Kong v Ng Yuen Shiu [1983]: although natural justice is not generally applicable to an illegal immigrant, a person could claim some elements of a fair hearing if there was LE of such a hearing. E.g. if government announced that illegal immigrants would be interviewed with each case being treated on its merits.

> Or the representation can augment existing procedural rights.
-R v Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators’ Association [1972]:
- The council had a policy of limiting the number of licensed taxis to 300.
-The applicants (taxi association) was assured that the number would not be increased without them being consulted, but failed to do so.
-It was unclear if the court believed that the applicants would have procedural right without the assurances but it is clear that the assurances enhanced A’s procedural rights.
-Lord Denning: council could not depart from the undertaking without serious consideration and hearing and then only if overriding public interest requires it.
-Roskill LJ: council could not resile without notice to As, representations from As and proper consideration of representations.

> The authority issued a criteria that it later departed from.
-R v Home Secretary Ex p. Asif Mahmood Khan [1984]:
-A sought to adopt his brother’s child from Pakistan based on the circular provided by the Home Secretary.
-The Home Office rejected his entry using a different criteria.
-Court found for A.
-Parker LJ: while there was no specific undertaking, the principle from Liverpool Taxi was applicable.

Question 19

Applicability of natural justice - Art. 6 ECHR - intro

Answer 19

> Art. 6 ECHR = right to a fair & public hearing by an independent & impartial tribunal.
In the determination of his civil rights and obligation or of any criminal charge against him, everyone is entitled to the above right.

Question 20

Applicability of natural justice - Art. 6 ECHR - Different interpretations

Answer 20

> Some argue that civil rights refer to rights in private law adjudicated by civil courts in continental systems, others argue that it is wider than that.
However, it has been extended to cover disputes concerning land use, monetary claims against PAs, applications and revocation of licenses, claims for social security benefit and disciplinary proceedings leading to dismissal of a profession.
-Rationale: administrative decision making can affect private rights and obligations.

Question 21

Applicability of natural justice - Art. 6 ECHR - Uncertainty on the limits of civil rights

Answer 21

> Discretionary benefit vs substantive entitlement.
Rights as a private person vs right as a citizen (not a civil right).

> Hussain:
-A sought JR for withdrawal of asylum financial support; it was held that the social security payments were not civil rights but social welfare benefits which were discretionary.

> Begum:
-C was offered housing as a homeless person but refused it alleging that it was in an area with drugs & racism.
-HLL held that the local authority had some discretion under statute whether to grant housing but this did not preclude the existence of a civil right under art. 6(1).

> Ali:
-Legislation concerning housing for homeless persons did not give rise to civil rights.
-Cases involving the award of services or benefits dependent on a series of evaluative judgments by the provider as to whether the statutory criteria was met did not engage art. 6(1).

Question 22

Content of rights - balancing exercise to determine the content of rights

Answer 22

> In the UK there is no general procedural code to determine the detailed content of procedural rights with the exception of sector-specific legislation and codes developed by tribunals.
Courts therefore undertake a balancing test to determine the content of procedural rights in particular cases.

Question 23

Content of rights - factors taken into account

Answer 23

> Nature of the individual’s interest.
Type of decision challenged.
Type of the subject matter.
Necessity of supplementing statutory procedures.
Cost of procedural requirements.

Question 24

Content of rights - More Generally

Answer 24

> The individual’s interest.
The benefits to be derived from procedural safeguards.
Costs of compliance with procedural safeguards.

Question 25

Content of rights - Interest

Answer 25

> The more important the interest, the greater the protection.

> Wilson:
-Facts: whether the applicant who was given a discretionary life sentence should be told of the reasons why the parole board had refused to recommend his release on licence.
-Judgment: The applicant was entitled to the information as his very liberty was the interest involved.

> McInnes:
-In the case of forfeiture the individual is entitled to an unbiased tribunal, notice and hearing.
-For an initial application nothing is taken away hence only a duty to reach an honest conclusion without bias and not in pursuance of a capricious policy is required.
-Renewal of a licence fell in between, here there is legitimate expectation that licence would be renewed and hence treated closer to forfeiture.

> However, the categories are not as rigid as Megarry VC puts it.
-In cases of application if the licence was a valuable commodity the public body could be required to allow A to make representations and to explain the decision.

Question 26

Content of rights - Cost

Answer 26

1. Re Pergamon Press Ltd
   > Facts:
   - Inspectors investigated 2 companies under Robert Maxwell.
   - The directors were unwilling to respond to questions unless assurances were given that a judicial type inquiry was conducted.
   >Judgment:
   -Court found for the inspectors due to the factors of speed and preliminary nature of the proceedings.
2. GCHQ
   >Judgment:
   -The past practice of the GCHQ created a legitimate expectation that those who worked there would be consulted before important changes were made in the terms of their employment.
   -The government decision that civil servants could not join trade unions without prior consultation was in breach prima facie.
   -Considerations of national security outweighed procedural fairness: giving notice could lead to protests & disruptions that the policy sought to prevent.

Question 27

Content of rights - Right to notice - Overview

Answer 27

1. Anufrijeva.
2. However, there can be limitations.
   -McInnes
   -Gaming Board
3. The core minimum was confirmed by the HL in AF for cases of deprivation of liberty.

Question 28

Content of rights - Right to notice - Anufrijeva

Answer 28

> R (Anufrijeva) v Home Sec [2003] HL.
Asylum seeker whose income support was terminated after the Home Sec rejected her asylum application but was not communicated to A.
Lord Steyn held that notice of a decision was essential to enable the person affected to be able to challenge it, it is an application of the right to justice.
Also acknowledged that there are situations where notice is not possible such as with arrests and search warrants but the present case fell within the general rule requiring notice.
Right to notice could only be excluded by Parliament expressly or by necessary implication.

Question 29

Content of rights - Right to notice - Limitations

Answer 29

1. McInnes v Onslow-Fane [1978]:
   >The council of the Boxing Board of Control did not have to give an applicant for a manager’s licence an outline of its objections.
   >The test was that the decision-maker should not capriciously withholed approval.
   >This case is authority for the distinction between application and forfeiture cases in cases concerning natural justice.
   >Megarry V-C - 3-fold test for natural justice:
2. Forfeiture cases
   -Definition: where the decision takes away some exisiting right or position.
   -Treatment: The individual is entitled to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges, three features of natural justice as defined by Lord Hodson in Ridge v Baldwin.
3. Application cases
   -Definition: where the decision is a refusal to grant applicant the right or position that he seeks, such as a membership or a license.
   -Treatment: nothing is taken away and there is hence only a duty to reach an ‘honest conclusion without bias & not in pursuance of a capricious policy’.
4. Expectation cases
   -Definition: where there there is a LE from what happened that an application will be granted.
   -Treatment: Such cases ‘[m]ay at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the LE of a renewal of a licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.’
   >Here the board were under a duty to ‘reach an honest conclusion, without bias, and not in pursuance of any capricious policy’.
5. R v Gaming Board for Great Britain
   >The applicants for a gaming licence should have the opportunity to respond to a refusal of application but the Board did not have to quote ‘chapter and verse’ nor disclose the source of information or reasons for refusal if it would not be contrary to public interest.

Question 30

Content of rights - Right to notice - The core minimum

Answer 30

> The core minimum was confirmed by HL in AF for cases of deprivation of liberty.
-Does not matter if the rights would not have made any difference in the outcome.
-There must be adequate information provided such that the person charged can make representations against the allegations.

Question 31

Content of rights - Causation

Answer 31

> Procedural protection applies irrespective of whether it would make a difference to the result of the case.
-AF
-Ridge v Baldwin: a reviewing court is not in a good position to calculate whether a hearing would have made a difference.
Rationale: it is difficult for a court to determine the outcome.
However, the legal position has been altered by the Criminal Justice and Courts Act Part 4 that imposes constraints on courts and the UT.
-In deciding to grant leave the High Court is empowered to consider whether the outcome would be substantially different if the conduct complained of had not occurred and it MUST consider that question if D asks it to do so.
-The same conditions limit the award of relief.

Question 32

Content of rights - Right to consultation

Answer 32

> No general duty to consult imposed by common law or statute.

> Statutory duty
-Where there is a statutory duty it requires the authority to supply sufficient information to those being consulted to enable them to tender advice.
-Failure to comply will result in the subsequent order made being held void.
1. R v Brent LBC Ex p Gunning (1985), requirements:
-Consultation must be at a time when proposals are at a formative stage.
-The proposer must give sufficient reasons for any proposal to permit intelligent consideration and response.
-Adequate time must be given for consideration and response.
-The product of the consultation must be conscientiously taken into account in finalising statutory proposals.

> Common law duty

-Arises primarily from LE: CCSU:
-where representation was made that individuals would be consulted.
-or there is expectation that a past benefit will be continued.

-The same guidelines as stated in Gunning are applicable to a right of consultation in common law:
-Moseley: irrespective of how the duty arises, the common law duty of procedural fairness will inform the manner of consultation.

Question 33

Content of rights - right to hearing - overview

Answer 33

> Parole board had to hold an oral hearing when determining an application for release or transfer to open conditions to comply with common law procedural fairness and art. 5(2): Osborn.

> Retrospective legislation barring right to hearing is rights-incompatible: Reilly.

Question 34

Content of rights - right to hearing - representation by a special advocate conforms with natural justice

Answer 34

> Representation by special advocate conforms with natural justice: Roberts v Parole Board [2005]:
-Facts: A challenged the decision of the Parole Board that sensitive material placed before it by the Home Office should be withheld from C and his solicitor and that it should only be disclosed to a special advocate who would represent A at a closed hearing of the parole board.
-Judgment: This was compatible with natural justice.
-Dissent by Lord Bingham and Lord Steyn: Incompatible. The affected party should have the opportunity to respond to allegations and hence evidence should be made known to him. PB had no power to make such a procedure due to the principle of legality which protects the right to a fair hearing.

Question 35

Content of rights - right to hearing - strict rules of evidence do not have to be followed

Answer 35

> Strict rules of evidence do not have to be followed: R v Moore.
The tribunal is not restricted to evidence acceptable in a court of law, provided that the evidence has probative value the court will not reassess its weight.
Where there is an oral hearing, written evidence submitted by the applicant must be considered but the tribunal may take account of any evidence of probative value from another source provided that A is informed and allowed to comment on it.
But there is no right to cross examine in all cases: Kavanagh v Chief Constable of Devon and Cornwall [1974].
-Cross examination might be available when evidence is before the hearing authority in the form of hearsay.

Question 36

Content of rights - right to hearing - Legal representation

Answer 36

> No absolute right.
Ezeh and Connors v UK (2002): a person charged with a criminal offence who does not wish to defend himself must have recourse to legal assistance, otherwise there would be a breach of art. 6(3)(c).
Tribunals have discretion to allow or deny legal representation, in deciding the tribunal should take into account the following factors: Tarrant [1985]:
-Seriousness of the charge.
-Whether any points of law are likely to arise.
-The capacity of a person to present their own case.
-Need for speed in reaching a decision.

Question 37

Closed material procedures - description

Answer 37

> Proceedings can have both open and closed elements.
Involves special advocates: security cleared advocate/barrister.
-The individual is not their client.
-Can ensure challenge to closed material and to argue for disclosure of closed materials.
-Individual and legal representative are present at open hearings but only the special advocate can attend the closed proceedings and has access to both closed and open materials.
Closed material: material which will harm the public interest if disclosed but can still be considered in proceedings rather than being excluded as with public interest immunity.
-The court not the state decides whether information can be disclosed.
Aim: to provide procedural protection in circumstances where public interest is against disclosure.

Question 38

Closed material procedures - Areas

Answer 38

> First introduced in the context of immigration deportation decisions after ECtHR ruling in Chahal v UK (1996).
Now used in:
-Special Immigration Appeals Commissions,
-Employment Tribunal cases concerning national security.
-Control order cases under the Prevention of Terrorism Act 2005.
-Financial restrictions proceedings under Counter-Terrorism Act 2008.

Question 39

Closed material procedures - Gisting

Answer 39

> In AF, it was held that the individual had to be informed of the gist of the case against him under a CMP to ensure compatibility with natural justice, when a control order is concerned.
-The individual must be informed about the essence of the allegations against him, but not the details or the source of evidence.
-Necessary to allow him to instruct legal representatives in order to defend himself.
-First laid down by the ECtHR in A v UK and affirmed in AF.

> Consequence of gisting requirement:
-Where the disclosure required by the court cannot be made due to the potential damage, the government must withdraw the information from the case & the control order will then be quashed.

> However, gisting is not required in every case.
In Tariq, it was held that T need not be informed of any part of the closed materials:
-T had his security clearance revoked and was dismissed as an immigration officer after his brother & cousin were charged with and convicted of terrorist acts.
-Can be distinguished on the ground that the case did not involve the liberty of the individual being at stake.

Question 40

Closed material procedures - Foundation of CMP

Answer 40

> Need for statutory foundation, it is not within the power of courts to use it: Al Rawi.
But qualified in Bank Mellat: the SC could use a CMP even though there was no express statutory provision, Constitutional Reform Act 2005 could be construed to allow use of CMP.
-CMP had been used in the High Court in the instant case and it would be difficult for the appeal to be conducted otherwise.
Supreme Court now has the power to use CMP under Justice & Security Act 2013.

Question 41

Closed material procedures - Justice and Security Act 2013

Answer 41

> Courts can make a declaration allowing a CMP procedure in civil proceedings.
The application for CMP may be made by the SoS or any party to the proceedings or by the court’s own motion: s.6(1)-(2).

> Two conditions for declaration:
1. A party to the proceedings would be required to disclose sensitive material in the course of proceedings to another person.
2. It is in the interest of fair & effective administration of justice to make a declaration.
Sensitive material is material that the disclosure of which will be damaging to national security.

> The court has a duty to keep the CMP under review and revoke it at any time if it considers that it is no longer in the interests of fair and effective administration of justice in the proceedings: s.7(2).

> Rationale:
-Ensure that sensitive cases were litigated with the maximum available material before the court.
-This is preferable to the public interest immunity system.
-It would render it less likely that cases would have to be dropped or settled.

> Counter argument by Lord Kerr in Al Rawi:
-There is the assumption that if the judges see everything he is bound to reach a fairer result.
-However, evidence that it is insulated from challenge may mislead.
-The right to know the case and challenge it occupies a central place in the concept of a fair trial.
-It hands over to once party considerable control over the production of material and manner of presentation.

Question 42

Closed material procedures - Special advocates

Answer 42

> Integral to the CMP.
Criticism:
-Special advocates lack access to independent expertise and advice and hence it is difficult to proffer evidence to challenge allegations or to challenge the government’s argument that disclosure would harm public interest.
-Thus, unless the advocate could point to an open source for information, the government’s case cannot be effectively challenged.
-SAs are assumed to be able to communicate with C after seeing closed material but the government would often object to such communication.
-The individual would not be able to deliver instructions to SA: Lord Dyson in Al Rawi.
-The JCHR stated that it is against the principle of adversarial justice in the British legal system.

Question 43

Duty to give reasons - Advantages for the provision of reasons for decisions

Answer 43

> Reasons can assist the courts in performing their supervisory function.
-Substantive review is easier to apply if reasons for decisions of public bodies are known.
Ensures that decisions have been thought through by the agency.
Ensures that agency conducts proper consultation if it is under a duty to provide proper reasons.
Increase legitimacy of decisions and public confidence.

Question 44

Duty to give reasons - Disadvantages

Answer 44

> It can stifle the exercise of discretion and overburden the administration.

Question 45

Duty to give reasons - No general duty to give reasons in English law

Answer 45

> However, statute and common law impose a duty to give reasons in certain circumstances.
Tribunals and Inquiries Act 1958 requires tribunals listed in the Act to give a statement, written or oral, of the reasons for a decision if requested by the individual, it also applies to ministerial decisions subsequent to statutory inquiries.

Question 46

Duty to give reasons - purpose

Answer 46

> Should enable individual to assess whether the decision can be challenged.

Question 47

Duty to give reasons - deficiency

Answer 47

> An alleged deficiency would lead to the decision being quashed only if the applicant has been substantially prejudiced.
A mere failure to comply with the duty does not itself provide grounds for appeal on a point of law: South Bucks District Council v Porter (no. 2) [2004].
The decision can only be quashed if the reasons as stated actually furnish evidence of error of law: S (A Minor) v Special Education Needs Tribunal [1996].

Question 48

Duty to give reasons - Effect of HRA

Answer 48

> The ECtHR regards the duty as implicit in the obligation to provide a fair hearing under Art. 6 ECHR; reasons do not have to be given for every single point but they must be sufficient to enable a party under the essence of the decision in order to exercise any appeal rights: Helle v Finland (1998).

Question 49

Duty to give reasons - Common Law Duty

Answer 49

> There is no general duty but it may arise in certain situations.
Where the absence of reasons renders any right of appeal or review nugatory or exercise more difficult: Wright’s Canadian Ropes [1947]:
-W complained that minister should have allowed claims for expenses to be set off against tax.
-The Privy Council held that although the minister was not bound to disclose his reasons he could not thereby render the company’s right of appeal nugatory.
The duty of SoS to provide reasons for length of life sentence: Doody.
-Necessary to facilitate any JR challenge by the prisoner.

> Cunningham:
-A duty was imposed on the Civil Service Appeal Board which had given the applicant far less compensation for unfair dismissal than under normal employment protection legislation.
-Duty imposed as CSAB was held to be a judicial body performing functions analogous to an industrial tribunal which would have to provide reasons.

> Wilson:
-Applicant should be entitled to know why the Parole Board was not recommending for release on the ground of natural justice.
-It was unfair to deprive the prisoner of reason.

Question 50

Should CMP be generally available in ordinary civil and criminal procedure? YES

Answer 50

> Practical argument:
-The scale of the PII (Personal Identifiable Information) exercise might be so vast that it sometimes takes years to complete (in Al Rawi over 140,000 documents may have to be subject to the PII process).

> Principled argument: greater fairness

• Provides a 3rd option to the claimant from:
  1. Proceeding without the relevant evidence (declared undisclosable under the PII).
  2. Having to concede the trial for lack of evidence where the material benefits C.
  3. Having the trial stuck out for lack of fairness to the D where the material benefits D (access to the courts is more important than the principles of open justice and natural justice).
  -Lord Mance dissenting in Al Rawi and Lord Sumption in Bank Mellat (No. 1).

-Giving the judge more evidence will allow him to come to a fairer conclusion.

Question 51

Should CMP be generally available in ordinary civil and criminal procedure? NO

Answer 51

> Doctrinal argument
-The principles of open justice and natural justice are fundamental to the common law and cannot be overridden except by statute.
Does not offer greater efficiency
-Several judges in Al Rawi doubted whether the CMP would save any time.
CMP will not lead to greater fairness but instead greater unfairness.
-The excluded party is disadvantaged, and the provision of a special advocate mitigates the unfairness but does not cure it since the excluded party cannot give the special advocate instruction: Lord Dyson in Al Rawi.
-‘Evidence which has been insulated from challenge may positively mislead’: Lord Kerr in Al Rawi.

> Uncertainty:
-It requires the court to make an assessment of the likelihood of the evidence assisting the case of the person seeking to rely on the closed material, which will increase the complexity of the case and lead to satellite litigation.