Natural Justice: Requirement of Fairness Flashcards
Procedural Impropriety
A failure to observe express procedural rules laid down in statute
Common law has divided procedural requirements into two broad categories
Mandatory requirements
Discretionary requirements
Mandatory requirements
Breach of a mandatory requirement will nullify the decision affected
- ultra vires action
Discretionary requirements
Breach of a mandatory requirement will not nullify the decision affected
- inter vires error
Howard v Bodington
Lord Penzance
- look at the subject matter
- consider the importance of the provision which has been disregarded
- look at the object intended to be secured by the act
Natural Justice
A judicial code of procedural fairness:
- audi alteram partem - fairness
- nemo iudex in sua causa - rule against bias
Audi alteram partem
The principle that both sides must be fairly heard - the requirement of fairness
Nemo iudex in sua causa
The principle that adjudication must be impartial - the rule against bias
Application of the rules of natural justice
Apply to all judicial proceedings in court and tribunals
For a long time it was held that the rules of natural justice applied only to judicial bodies, not to bodies exercising a purely administrative function.
- this changed with Ridge v Baldwin
Cooper v Wandworth Board of Works
Assertion of the AAP principle in the Victorian era
Court concluded that the board had acted unlawfully in not granting a hearing before deciding to demolish Mr Cooper’s house.
Erle CJ:
- no man is to be deprived of his property without his having an opportunity of being heard .
Concerns raised from Cooper v Wandsworth Board of Works
Whether or not the AAP principle applied to a given decision
- a threshold question.
What was the content of the AAP principle
- if the first question was answered in the negative, there were no common law restraint on the decision makers procedural choices.
R v Leman Street Police Station Inspector, ex p Venicoff
The Aliens Restriction Act 1914 - HS detention of aliens.
- court held there was no requirement that the AAP principle be respected here despite severely impacting the liberty of a person.
Russel v Duke of Norfolk
Race-horse licence was revoked for ‘misconduct’
Allowed to make a statement but not to challenge the decision at a perfunctory hearing.
Goddard CJ - no possible ground for applying the AAP principle here.
R v Metropolitan Police Commissioner, ex p Parker
Commissioner possessed a delegated power to revoke taxi licenses.
Goddard LJ - AAP principle did not apply
- Parker had lost a ‘privilege’ not a ‘right’
- The Commissioner’s action was an ‘administrative’ rather than ‘judicial’ function.
- the commissioner should not be threatened with orders of certiorari etc
Nakkuda Ali v Jayaratne
Power of the Ceylonese gov’t officeal to revoke a traders licence if he believed a trader to be unfit.
Court held that the AAP principle did not apply as the license was a privilege not a right.
- the revocation was therefore an executive not a judicial function.
University of Ceylon v Fernando
Fernando accused of cheating an exam - the charge would have ruined him.
The privy council accepted that these proceedings were subject to the rules of natural justice but that Fernando was not entitled to a cross-examination of the witnesses against him.
Ridge v Baldwin
C of A: initially held that the rules of natural justice had no application to an administrative decision-making process.
Lord Reid: the rules of natural justice were capable of applying in principle where an administrative body acts judicially.
- Judicial meant nay decision affecting the rights of an individual
Implication of Ridge v Baldwin
- positive
Craig:
- a return to the Victorian rules of natural justice
- removed the impediments created by the early 20th century cases.
Implication of Ridge v Baldwin
- negative
No attempt to put substance into the rules of natural justice - no mention of how much procedural protection Ridge was entitled to.
The indication was that the common law was more concerned with maximising the reach of the AAP principle that identifying and enhancing it’s content.
Re Hong Kong
A brief interview was deemed sufficient to meet the procedures of natural justice
R v Aston ex p Roffey
Procedural fairness did not always require that the individual be granted a hearing.
Malloch v Aberdeen Corp.
When a hearing would be required, the individual would not need to be given any prior notice of the details fo the case which they had to answer for.
R v Gaming Board for Great Britain
Not permitted to know the details of the evidence that the board had considered which had led it to conclude that they were not fit persons to be granted a license
R v SS for HA, ex p Hosenball
The government was under no obligation to give Hosenball details of the case against him so that he could refute the government’s decision to deport him
Clark on Ridge v Baldwin
- Little point in saying that AAP applies to all government decisions if the benefit bestowed on the individual is worthless
- AAP should be viewed as a basic minimum requirement that should include:
- entitlement to a hearing
- clear indication of the case that had to be met
Mullan on Ridge v Baldwin
Spectrum Theory
- set by justiciability
- the less justiciable the less legalistic procedural contractions it would be under.
A legitimate expectaiton
where a person responsible for taking a decision has induced in someone who may be affected by the decision, a reasonable expectation that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken.
Schmidt v Secretary of State for home affairs
Denning: A hearing would not be needed unless the individual had a ‘legitimate expectation’
R v Liverpool Corp. ex p Liverpool Taxi Fleet Operators
Council powers to license taxi’s
The council sought to break a promise and the association asked the court to hold that the council was bound to respect the substance of its promise
Roskill: A legitimate expectation could only give rise to a procedural benefit.
R v Hull Prison Board of Visitors, ex p St Germain
Disciplinary functions of prison boards of visitors could be quashed if they failed to conform to the requisite standard of fairness
- in contrast disciplinary functions of prison governors were not subject to AAP
Leech v Deputy Governor of Parkhurst Prison
Govenor functions could be divided into disciplinary and management issues
- disciplinary element subject to AAP
McInnes v Onslow-Fane
Outlined three categories of procedural protection:
- Forfeiture cases
- Application
- Expectation Cases
Forfeiture cases
Individuals could lose something they have
- need a high level of procedural protection
- need a notice of charge, time to prepare, opportunity to make submissions
Application cases
The individual is merely applying for something
- virtually no procedural protection
- protected by the rules against the abuse of discretion
- Decision must be honest, not capricious, not in pursuit of improper purpose.
Expectation cases
Where the individual has a good reason that the decision will go his way.
- a license coming up for renewal.
Chief Constable of North Wales Police v Evans
Where a review was based upon a breach of natural justice, the court should only be concerned with the manner in which the decision was reached, not with the correctness of the decision itself.
- procedural over substantial
Ex p Tarrant
In this case the court found that there was no right to legal representation but there was a discretion to allow it.
Factors to take into account:
Lloyd v McMahon
Lord Bridge:
- so-called rules of natural justice are not engraved on tablets of stone.
- the requirements of fairness depend on the character of the decision-making body, and the statutory framework in which it operates
Cooper v Board of Works for the Wandsworth District
Mr Cooper had not given enough notice of building a house - the council sent workmen to demolish it.
Court held that the board’s behaviour was intolerable
- the board had discretion to demolish but was not subject to a duty to do so
- the board could charge Mr Cooper for the demolition, but they would have to hear him first.
Cinnamond v British Airports Authority
Authority could ban mini-cab drivers from Heathrow airport. Divers were finally banned for ripping people off after they failed to pay fines.
- challenger that they should have been heard before their ban.
Denning
- no such requirement as they had every opportunity to do so in the past.
- they did not deserve the rules of natural justice
Clarke: Cinnamond
The flexibility of AAP goes too far
- all decisions should be made with a minimum level of protection: the right to be heard and to know the case to be made against the applicant.
Origins of the ‘legitimate expectation’
An outgrowth of the AAP principle
- first mentioned by Denning in Schmidt
A-g for Hong Kong v Ng Yuen Shiu
Lord Fraser:
- legitimate expectations could be created by some statement or undertaking made by or on behalf of a public authority.
- a legitimate expectation only binds a public authority to the procedure it has said it will follow (as long as it does not conflict with it’s duty)
- he case envisages legitimate expectation as a means of securing a right to a hearing.
R v SS HA ex p Kahn
Having complied with the criteria for bringing a child to the UK, his application was rejected.
- no LE to be let in, only to have his application reviewed.
CCSU v Minister for the Civil Service
Lord Fraser:
a legitimate expectation can arise from ‘an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.
R v Swale ex p RSPB
The existence of a Legitimate Expectation should be judged objectively, and not form the standpoint of either parties.
- a LE could arise even when a Public Authority had not intended it to arise
R v Ss HD ex p Ruddock
C argued that there was a LE that her phone would not be tapped - court held this to be so.
The Home Secretary may change his policy, but must announce he is doing so and may not depart from whatever policy is currently in force.
Findlay v SS HD
Changes to parole regimes in prisons - C argued there was a LE that the previous policy should apply to them.
Lord Scarman
- there was no LE - the only LE they had was to be treated fairly by the policy of the government.
R v SS Health ex p Tobacco
No Legitimate Expectation had arisen, because no public authority could be bound not to perform its duty.
An authority must always remain free to perform it’s duties.
- no expectation can ever arise
- essentially abolishing the doctrine of LE
Test for a decision to override an expectation
One of fairness (low threshold
- ex p Hamble Fisheries
One of irrationality
- ex p Hargreaves
R v SS Education, ex p Begbie
Statements made by politicians while in opposition could generate a substantive legitimate expectation when such politicians subsequently gain government office.
R v North and East Devon HA, ex p Coughlan
Three classes of legitimate expectation were defined:
- Expectations fo procedural benefits such as consultation: the decision to override could be challenged on the grounds of unfairness.
- Expectations of substantive benefits: the test was unfairness
- Expectations which an authority was merely required to take into account: decision to override could only be challenged on irrationality.
R v LB Newham, ex p Bibi
No distinction could be drawn between substantive and procedural expectations.
Enderby Town FC v FA
Nobody should adopt a rigid rule never to permit representation.
R v Board of Visitors HM Prison the Maze, ex p Hone
allowing legal representation on a routine basis would have the unwelcome effect of ‘wholly unnecessary delays in many cases and a waste of time and money
R v CS Appeal Board, ex p Cunningham
common law imposed a general duty to give reasons for decisions on government bodies.
R v Higher Education funding Council, ex p Institute of dental Surgery
The scope of the duty to give reasons did not include academic institutions.
R v SS HD, ex p Fayed
The Home secretary need not give any reasons for any decision granting or refusing citizenship.
