Natural Justice: Requirement of Fairness

Question 1

Procedural Impropriety

Answer 1

A failure to observe express procedural rules laid down in statute

Question 2

Common law has divided procedural requirements into two broad categories

Answer 2

Mandatory requirements

Discretionary requirements

Question 3

Mandatory requirements

Answer 3

Breach of a mandatory requirement will nullify the decision affected
- ultra vires action

Question 4

Discretionary requirements

Answer 4

Breach of a mandatory requirement will not nullify the decision affected
- inter vires error

Question 5

Howard v Bodington

Answer 5

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

Question 6

Natural Justice

Answer 6

A judicial code of procedural fairness:

• audi alteram partem - fairness
• nemo iudex in sua causa - rule against bias

Question 7

Audi alteram partem

Answer 7

The principle that both sides must be fairly heard - the requirement of fairness

Question 8

Nemo iudex in sua causa

Answer 8

The principle that adjudication must be impartial - the rule against bias

Question 9

Application of the rules of natural justice

Answer 9

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

Question 10

Cooper v Wandworth Board of Works

Answer 10

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 .

Question 11

Concerns raised from Cooper v Wandsworth Board of Works

Answer 11

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.

Question 12

R v Leman Street Police Station Inspector, ex p Venicoff

Answer 12

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.

Question 13

Russel v Duke of Norfolk

Answer 13

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.

Question 14

R v Metropolitan Police Commissioner, ex p Parker

Answer 14

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

Question 15

Nakkuda Ali v Jayaratne

Answer 15

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.

Question 16

University of Ceylon v Fernando

Answer 16

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.

Question 17

Ridge v Baldwin

Answer 17

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

Question 18

Implication of Ridge v Baldwin

- positive

Answer 18

Craig:

• a return to the Victorian rules of natural justice
• removed the impediments created by the early 20th century cases.

Question 19

Implication of Ridge v Baldwin

- negative

Answer 19

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.

Question 20

Re Hong Kong

Answer 20

A brief interview was deemed sufficient to meet the procedures of natural justice

Question 21

R v Aston ex p Roffey

Answer 21

Procedural fairness did not always require that the individual be granted a hearing.

Question 22

Malloch v Aberdeen Corp.

Answer 22

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.

Question 23

R v Gaming Board for Great Britain

Answer 23

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

Question 24

R v SS for HA, ex p Hosenball

Answer 24

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

Question 25

Clark on Ridge v Baldwin

Answer 25

• 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

Question 26

Mullan on Ridge v Baldwin

Answer 26

Spectrum Theory

• set by justiciability
• the less justiciable the less legalistic procedural contractions it would be under.

Question 27

A legitimate expectaiton

Answer 27

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.

Question 28

Schmidt v Secretary of State for home affairs

Answer 28

Denning: A hearing would not be needed unless the individual had a ‘legitimate expectation’

Question 29

R v Liverpool Corp. ex p Liverpool Taxi Fleet Operators

Answer 29

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.

Question 30

R v Hull Prison Board of Visitors, ex p St Germain

Answer 30

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

Question 31

Leech v Deputy Governor of Parkhurst Prison

Answer 31

Govenor functions could be divided into disciplinary and management issues
- disciplinary element subject to AAP

Question 32

McInnes v Onslow-Fane

Answer 32

Outlined three categories of procedural protection:

• Forfeiture cases
• Application
• Expectation Cases

Question 33

Forfeiture cases

Answer 33

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

Question 34

Application cases

Answer 34

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.

Question 35

Expectation cases

Answer 35

Where the individual has a good reason that the decision will go his way.
- a license coming up for renewal.

Question 36

Chief Constable of North Wales Police v Evans

Answer 36

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

Question 37

Ex p Tarrant

Answer 37

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:

Question 38

Lloyd v McMahon

Answer 38

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

Question 39

Cooper v Board of Works for the Wandsworth District

Answer 39

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.

Question 40

Cinnamond v British Airports Authority

Answer 40

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

Question 41

Clarke: Cinnamond

Answer 41

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.

Question 42

Origins of the ‘legitimate expectation’

Answer 42

An outgrowth of the AAP principle

- first mentioned by Denning in Schmidt

Question 43

A-g for Hong Kong v Ng Yuen Shiu

Answer 43

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.

Question 44

R v SS HA ex p Kahn

Answer 44

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.

Question 45

CCSU v Minister for the Civil Service

Answer 45

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.

Question 46

R v Swale ex p RSPB

Answer 46

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

Question 47

R v Ss HD ex p Ruddock

Answer 47

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.

Question 48

Findlay v SS HD

Answer 48

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.

Question 49

R v SS Health ex p Tobacco

Answer 49

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

Question 50

Test for a decision to override an expectation

Answer 50

One of fairness (low threshold
- ex p Hamble Fisheries
One of irrationality
- ex p Hargreaves

Question 51

R v SS Education, ex p Begbie

Answer 51

Statements made by politicians while in opposition could generate a substantive legitimate expectation when such politicians subsequently gain government office.

Question 52

R v North and East Devon HA, ex p Coughlan

Answer 52

Three classes of legitimate expectation were defined:

1. Expectations fo procedural benefits such as consultation: the decision to override could be challenged on the grounds of unfairness.
2. Expectations of substantive benefits: the test was unfairness
3. Expectations which an authority was merely required to take into account: decision to override could only be challenged on irrationality.

Question 53

R v LB Newham, ex p Bibi

Answer 53

No distinction could be drawn between substantive and procedural expectations.

Question 54

Enderby Town FC v FA

Answer 54

Nobody should adopt a rigid rule never to permit representation.

Question 55

R v Board of Visitors HM Prison the Maze, ex p Hone

Answer 55

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

Question 56

R v CS Appeal Board, ex p Cunningham

Answer 56

common law imposed a general duty to give reasons for decisions on government bodies.

Question 57

R v Higher Education funding Council, ex p Institute of dental Surgery

Answer 57

The scope of the duty to give reasons did not include academic institutions.

Question 58

R v SS HD, ex p Fayed

Answer 58

The Home secretary need not give any reasons for any decision granting or refusing citizenship.