Lecture 23: Judicial Review - Procedural Fairness Flashcards
What is the focus of substantive justice in judicial review?
The focus of substantive justice is to ensure that decisions are within the scope of power conferred to a decision-maker, ensuring that powers are not exceeded.
What is the focus of procedural justice or fairness?
The focus of procedural justice or fairness is to provide individuals with a fair opportunity to influence the outcome of a decision and to ensure the integrity of decisions.
What is the basic concept of fairness or natural justice in the context of procedural and substantive issues?
The basic concept of fairness or natural justice involves the common law imposing minimum standards of procedural fairness and due process, which includes the principle of audi alteram partem (the right to a fair hearing).
What does the common law require regarding the impartiality of adjudicators?
The common law requires that an adjudicator is unbiased, following the principle of nemo judex in causa sua (no one should be a judge in their own case).
What is the historical meaning and legacy of audi alteram partem as established in Cooper v Wandsworth Board of Works (1863)?
The historical meaning and legacy of audi alteram partem in Cooper v Wandsworth Board of Works (1863) emphasized the importance of a right to a hearing, even where no statutory provision existed. Wiles J stated that “a board exercising this large power should follow the ordinary rule, that the party sought to be affected should be heard” (143 E.R. 414, at 194).
What did Board of Education v Rice (1911) say about the flexibility of the audi alteram partem rule?
In Board of Education v Rice (1911), the court reiterated the generality and flexible nature of the audi alteram partem rule, stating that it applied to “everyone who decides anything.” However, it did not necessarily require a full trial (Lord Loreburn, at 182).
How do judicial and administrative decisions differ in terms of audi alteram partem?
Judicial decisions require a trial, while administrative decisions do not necessarily apply the full scope of natural justice, and the audi alteram partem rule does not require a trial in these contexts.
Does the body need to ‘act judicially’ for rules of natural justice to apply, according to Ridge v Baldwin?
In Ridge v Baldwin [1964] A.C. 40, Lord Reid stated that the older cases do not support the idea that natural justice only applies to judicial proceedings. In fact, he said, “in my judgement the older cases certainly do not ‘illustrate’ any such general principle - they contradict it” (79).
Does the distinction between ‘judicial’ and ‘administrative’ still apply in the context of natural justice, according to R v Gaming Board for Great Britain, ex p Benaim and Khaida?
No, the distinction no longer applies. Lord Denning M.R. in R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 QB 417 stated, “at one time it was said that the principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v Baldwin” (430).
How does Lord Roskill describe the use of the phrase “principles of natural justice” in the GCHQ case (1985)?
Lord Roskill in the GCHQ case [1985] AC 374 stated that the phrase “principles of natural justice” is “widely misunderstood and therefore as often misused.” He suggested that it might be better replaced by the phrase “duty to act fairly.”
What is the role of the courts in relation to fairness in decision-making, according to Lord Roskill in the GCHQ case (1985)?
Lord Roskill explained that it is not for the courts to determine whether a particular policy or decision is fair. Rather, they are concerned with the manner in which those decisions are made. The extent of the duty to act fairly will vary from case to case (GCHQ case [1985] AC 374, Lord Roskill, 412).
How does Lord Bridge describe the demands of fairness in Lloyd v McMahon (1987)?
Lord Bridge in Lloyd v McMahon [1987] AC 625 stated that “the so-called rules of natural justice are not engraved on tablets of stone.” He emphasized that what fairness demands depends on “the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates” (702).
What factors determine the requirements of fairness according to Lloyd v McMahon (1987)?
According to Lloyd v McMahon [1987], the requirements of fairness depend on the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates.
What is the duty to act fairly in UK procedural fairness?
The duty to act fairly in UK procedural fairness refers to the requirement for decision-makers to treat individuals fairly and provide them with a fair opportunity to present their case, especially when decisions affect their rights.
What does the rule against bias entail in procedural fairness in the UK?
The rule against bias in UK procedural fairness ensures that decision-makers must not have any personal interest in the outcome of a decision and must remain impartial throughout the decision-making process.
How does Article 6 of the European Convention on Human Rights (ECHR) relate to procedural fairness in the UK?
ECHR Article 6 guarantees the right to a fair trial and procedural fairness, requiring that individuals have access to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
What does “natural justice” and the duty to act fairly encompass?
“Natural justice” and the duty to act fairly encompass due process, consultation, representation, notice, and reasons in decision-making processes.
What does “bias” in decision-making require?
“Bias” in decision-making requires unbiased decisions, with no conflict of interest or actual or perceived bias.
How does Article 6 of the European Convention on Human Rights (ECHR) relate to fairness?
Article 6 of the ECHR applies to “civil rights and obligations or criminal charge,” guaranteeing a “fair and public hearing” and an “independent and impartial tribunal.”
What presumption does Lord Mustill discuss in R v Secretary of State for the Home Department, ex p Doody (1994)?
Lord Mustill in R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 states the “presumption” that powers conferred by Parliament “will be exercised in a manner which is fair in all the circumstances.”
According to ex p Doody, how do standards of fairness change over time?
Lord Mustill explains that “the standards of fairness are not immutable. They may change” over time in R v Secretary of State for the Home Department, ex p Doody [1994].
How should the principles of fairness be applied according to ex p Doody?
In ex p Doody, Lord Mustill states that “the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.”
What role does the statute play in fairness, according to ex p Doody?
In ex p Doody, Lord Mustill emphasizes that an “essential feature of the context is the statute which creates the discretion…” and that fairness must be assessed in light of this context.
What does fairness often require in terms of representation, as per ex p Doody?
Lord Mustill states in ex p Doody that “fairness will… often require that a person who may be adversely affected by the decision will have an opportunity to make representations.”
