Procedural Fairness Flashcards
What is the disadvantage of greater procedural safeguards?
procedures that they put in place as bars to efficiency. It is true that their observance restricts the freedom of administrative action, and costs time and money
What are the benefits of procedures?
the fairness that a lack of procedures engenders means that there will be fewer grievances, appeals and complaints burdening the administrative system. Perhaps, then, rules pertaining to procedural fairness actually increase efficiency rather than impede upon it (similar argument made by Williams re permitting legitimate expectations - long-term goals over short-term goals!)
Natural Justice
A man may not be a judge in his own cause (the rule against bias) + A man’s defence must always be fairly heard (procedural fairness – the more far reaching of the principles)
rule against bias is a necessary but not sufficient aspect of natural justice. Although a decision maker clearly has to be impartial for a fair decision to be made, the overall goals of procedural fairness can only be secured if that decision maker goes on to apply a decision making process which is itself fair. This aspect is sometimes referred to as the right to a fair hearing.
‘Audi alteram partem’ – ‘hear the other side’. It is fundamental to fear procedure that both sides should be heard. It is unfair to condemn a man without giving him an opportunity to be heard in his own defence: and any agreement or practice to the contrary would be invalid (Denning LJ).
When does the law require someone to be given a fair hearing? What does this mean if it is necessary?
Distinguish two traditions:
- Impact-oriented analysis. What is the likely effect of the decision? How important are the rights and interests at stake? The more fundamental the impact, the more likely it is that we will have to ensure a fair hearing is provided.
- Function-oriented analysis. What is the nature of the function? Is it judicial or administrative?
Example of impact-oriented analysis
Cooper v. The Board of Works for Wandsworth District (1863) 14 CBNS 180; 143 ER 414. Illustration of the impact-oriented analysis.
Someone started building without the necessary planning permission, and the board of works simply came around with a bulldozer and knocked done the half built house. The claimant sued the defendant for trespass, arguing that a right to a fair hearing ought to be implied into the relevant statutory power. The judge said that it was necessary that the person be given such a hearing, and it was clear he came to this conclusion on the basis of the impact that the decision would have on the individual.
The very grave implications that could follow from the exercise of the power – such as the demolition of a person’s house – led Erle CJ to conclude that a duty to comply with natural justice necessarily arose.
Within the impact-oriented analysis, note the conclusionary use of terms such as ‘judicial’, ‘quasi-judicial’ and ‘administrative’. Traditionally, the powers attracting such a duty were called ‘judicial/quasi-judicial’ – but the terms weren’t intended to be descriptive of the nature of the power, but were simply the words used once the conclusion had been reached that the power attracted such a duty. ‘Administrative’ was the word used to describe powers which didn’t have sufficient impact to trigger the duty. The focus therefore was still on the impact as opposed to the function. In particular, consider Wade (1951) 67 LQR 103 at 106:
it was not the power which was judicial, but the procedure which the courts held must be followed before the power could be properly exercised.
But note the courts’ slide into a function-oriented analysis: ‘judicial’, ‘administrative’, etc as functional tests to be applied, rather than conclusionary labels attached to powers.
For examples, see Nakkuda Ali v. Jayaratne [1951] AC 66;
(Trading licence could be revoked without a hearing) R v. Metropolitan Police Commissioner, ex parte Parker [1953] 1 WLR 1150 (Taxi driver’s licence could be revoked without a hearing. Despite the impact that this would have on his career); Franklin v. Minister of Town and Country Planning [1948] AC 87 (Minister could not be challenged on apparent bias grounds because the minister was not exercising a ‘judicial’ function).
Over time, the courts began to mistake the impact-orientated basis of the distinction. It was decided that where you have issues like the revocation of licenses, this is not something that can trigger the requirement for a fair hearing because that is a purely administrative (in the governmental sense of the word) function.
Ridge v. Baldwin [1964] Lord Reid addressed the famous dictum of Atkin LJ in R v. Electricity Commissioners, ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205:
the operation of the writs [of prohibition and certiorari] has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, courts of justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.
Ridge v. Baldwin [1964] facts
Chief Constable was suspended following his arrest. He was acquitted but there were critical comments against him made by the judge. The committee made the decision to dismiss – but he was not given a fair hearing (he wasn’t even present at the dismissal meeting). It was held that there was a breach of natural justice. However, in reaching its conclusion the court had to consider the judicial/administrative dichotomy. The HL said that the courts had taken a wrong turning and that this could be traced back to Atkin LJ in the Electricity Commissioners’ case.
Later, Lord Hewart CJ in R v. Legislative Committee of the Church Assembly, ex parte Haynes-Smith [1928] 1 KB 411 said that:
In order that a body may satisfy the required test [ie the test in the Electricity case] it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present.
Having set out these passages in Ridge, Lord Reid said of the latter:
[T]his passage … is typical of what has been said in several subsequent cases. If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities … And, as I shall try to show, it cannot be what Atkin L.J. meant.
Lord Reid held that some cases, such as Haynes-Smith and Nakkuda Ali, had interpreted Lord Atkin’s speech in Electricity Commissioners to mean that the duty to act judicially was a prerequisite for the application of the rules of natural justice, rather than a consequence of their imposition. Lord Reid said that in actuality, Atkin had ‘inferred the judicial element from the nature of the power’ – and that this was therefore the correct approach.
Ridge suggested that the way forward was that a duty is imposed when the effect of a decision was such as to require adherence to natural justice. There was a reinstatement of the impact-orientated analysis, meaning a duty (a ‘duty to act judicially’) could be imposed in wider circumstances than the mistaken approach allowed
What change did Ridge institute?
Ridge was useful in that it sorted out the confusion created by the artificial use of the word ‘judicial’ to describe functions which were in reality administrative, but it did not eliminate this misnomer from the law. While it placed renewed emphasis on the impact-oriented approach to when courts should impose a duty to provide a fair hearing, it still phrased the duty in the conclusionary language of a ‘duty to act judicially’.
• Continued relevance of ‘duty to act judicially’. The notion of ‘a duty to act judicially’ was perpetuated by Ridge, but the duty could be inferred from the nature of the power – and hence much more readily.
But what if no duty to act judicially could be implied? What about cases where it seemed appropriate to require a measure of focus, but that the impact of the decision was not such that it generated an obligation to go the whole way and act ‘judicially’?
• But note circumstances in which such a duty could attach post-Ridge. Questions still remained about how far the duty could extend.
Post Ridge; What of situations in which no ‘duty to act judicially’ could be found?
Consider the following remarks of Lord Parker CJ in In re HK (An Infant) [1967] QB 617 at 630:
… [E]ven if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one’s mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi judicially.
Lord Parker here contends that the rules of natural justice, i.e. a ‘duty to act fairly’ could apply beyond the category of cases (already extended by Ridge) in which a ‘duty to act judicially’ arose. The latter is a (more prescriptive) subset of the former. Even if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must nevertheless act fairly. The implicit acceptance of the difference between the two duties led some judges to continue to place significant weight on the administrative-judicial dichotomy (e.g. Pearlberg).
Did Re HK perpetuate an administrative/judicial dichotomy? (Duty to act fairly/duty to act judicially?)
See, eg, remarks of Lord Pearson in Pearlberg v. Varty [1972] 1 WLR 534 at 547.
In Re HK and Pearlberg suggest that one of two situations will be present:
• Duty to act judicially. (Rules of natural justice apply)
• No duty to act judicially. (Duty to act fairly may apply. e.g. Immigration Officer in Re HK).
cf Megarry VC’s more flexible use of language in McInnes v. Onslow-Fane [1978] 1 WLR 1520 at 1530.
In Mckinnes, there emerged an approach which viewed the situations as appearing on a spectrum – taking a context-sensitive approach to the duty to act fairly. ‘Fairness’ is a broad principle whose precise meaning falls to be determined in context, on a sliding scale which does not require clear distinctions to be drawn between ‘judicial’, ‘quasi judicial’ and ‘administrative’ powers. The upshot is that whether or not a ‘duty to act judicially’ arises, the decision making power is likely to be accompanied by an obligation to respect certain procedural norms, determined in their intensity by the context.
• This approach says that any decision that affect rights will generate the duty to act fairly, and then it must be asked to what extent that should be applied.
• The focus shifts from the first stage to the second – we increasingly ask to what extent the duty applies, not whether it applies in the first place.
• The context sensitive duty to act fairly extends from trial-esque procedural protections to more modest protections.
What does W&F say about the labels ‘natural justice’ and ‘acting fairly’
It is now settled that there is no difference between ‘natural justice’ and ‘acting fairly’, but they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case.
Consider the following academic opinions on the emergence of a flexible conception of fairness:
- Cane, Administrative Law (Oxford 2004) at 161: an unimaginative conception of fairness?
- Mullan (1975) 25 UTLJ 281: flexibility to be welcomed?
- Loughlin (1978) 28 UTLJ 215: a recipe for uncertainty and inappropriate interventionism?
What is the relevance of legitimate expectations (see below) to existence/content of duty to act fairly?
There might be legitimate expectations of fair treatment – triggering a duty even where it may not be necessary on the above principles. See, eg, Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 (discussed in lectures on legitimate expectations).
There were illegal immigrants into Hong Kong, told that they were going to be deported without any kind of fair hearing. The case made it to the Privy Council, who assumed that but-for any arguments based on legitimate expectation, there would be no free-standing duty to act fairly, but thanks to the promise that was made and the expectation it gave rise to, the immigrants were actually entitled to quite a high level of fairness.
Legitimate expectations are therefore a factor that can impact on whereabouts on the continuum an individual case will fall in relation to the duty to act fairly.
The doctrine of legitimate expectation can influence (a) the scope of the duty to act fairly, by triggering it in circumstances in which the duty wouldn’t arise on the principles considered above (e.g. Ng Yuen Shui); and (b) the content of the duty, by in some circumstances requiring a higher level of procedural protection founded on expectation than an individual would normally be entitled to (e.g. oral vs. written representations).
Art 6 ECHR
Article 6 says that where it applies, there is a single procedural model that needs to be followed – and it is often more than is normally required by the common law. Where it is invoked however, there might be more required by decision makers. But bear in mind that: (a) it only applies in a relatively narrow range of cases; and (b) that there are cases where the common law in any event would require a standard of fairness just as high as Article 6. Whether it is worth a claimant arguing it then depends on the treatment of their individual situation by the common law.
What are the limits of procedural fairness?
- Absence of trigger factor – nothing to trigger the duty on an impact oriented analysis.
- Legislative displacement (eg Wilkinson v. Barking Corporation [1948] 1 KB 721) But there may be judicial reluctance to read the statute in this way. They will need clear evidence that that was parliament’s intention.
- Contextual obstacle (eg Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 [The GCHQ case]; R v. Secretary of State for Home Affairs, ex parte Hosenball [1977] 1 WLR 766) In GCHQ duties concerning national security may blunt or displace the duty to act fairly. GCHQ were held to operate in a very sensitive context where it was inappropriate for the court to impose consultation as a procedural safeguard, on the grounds of national security.
- Urgency (but cf R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] IRLR 679). Director of Children’s’ Services at Harringate was dismissed very soon after the revelation of details surrounding Baby P. The court suggested that the need to protect vulnerable children may impact on the requirement for procedural fairness. It also said however that whether this is true depends on the exact circumstances of the case and in this case it wasn’t enough. There was limited urgency – the dismissed social worker wasn’t a front-line social worker. If it had been a situation where a person with contact to children had been accused of pedophilia, it might be legitimate to dismiss them and ask questions later – but this wasn’t a case analogous to that.
What if a fair hearing ‘would make no difference’? Should no such hearing be legally required in such circumstances?
Arguments against holding such a hearing
Whether this argument succeeds depends on the view the court is adopting.
See comments of Lord Wilberforce in Malloch v. Aberdeen Corporation [1971] 1 WLR 1578 and Brandon LJ in Cinnamond v. British Airports Authority [1980] 1 WLR 582. In Malloch, Lord Wilberforce adopted an instrumental analysis, which sees fairness as a means to an end. If we can be confident that the decision would be affected with or without a fair hearing, we shouldn’t require it – in fact there is a positive economic argument against it.
What if a fair hearing ‘would make no difference’? Should no such hearing be legally required in such circumstances?
Arguments for holding such a hearing
But note arguments against this view (usefully summarised by Bingham LJ in R v. Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344 at 352), including:
• Practical argument: John v. Rees [1970] Ch 345, per Megarry J The difficulty with this view is that often the only way to tell if it would make a difference is to have a fair hearing in the first place. If we do apply this methodology, it needs to be a truly, irrefutably open and shut case. But Megarry J once said that the law is strewn with such cases that turned out not to be open and shut. (John v Rees).
• Instilling a culture of fairness: Clark [1975] PL 27 at 60
• Importance of perception of fairness: R v. Thames Magistrates’ Court, ex parte Polemis [1974] 1 WLR 1371 at 1375-6, per Lord Widgery CJ. It might be worth sticking to procedural fairness for systemic reasons if only for the perception of fairness this generates. This is an instrumental analysis. There are still reasons, then, to question whether this ‘makes no difference argument’ cuts much ice.
• Instrumental and non-instrumental views of fairness. The non- instrumental, or normative view would say that fairness is not (just) a means to an end. If you are subject to a decision affecting some fundamental aspect of your life, and you are never invited to play any part, or have any say in that decision then that speaks volumes about the way the state perceives you. The normative view says that individuals deserve fair hearings, as it respects your dignity.
What if a fair hearing ‘would make no difference’? Should no such hearing be legally required in such circumstances?
R (National Association of Health Stores) v. Department of Health [2005]
per Sedley LJ. There were restrictions on the supply of a natural herbal remedy, ‘kava kava’. The DoH consulted on the possibility of an outright ban vs. making it prescription only, but not on the prospect of compulsory labelling. The remedy was banned outright, and the association applied for review on the basis of a lack of procedural fairness, because compulsory labelling wasn’t considered.
Sedley LJ said that it was necessary to take the ‘makes no difference’ argument with caution. However, what we had in this case was a ‘laboratory example’ of a case in which it was appropriate. The court was absolutely certain that the contended for procedure would have made no difference – the compulsory labelling option was less draconian than the rejected prescription-only option.
What if a fair hearing ‘would make no difference’? Should no such hearing be legally required in such circumstances?
Secretary of State for the Home Department v. AF (No 3) [2009]
Lord Phillips explicitly endorsed an instrumental view of the importance of fair procedure – we should ensure that the outcome is the best one. In principle then a decision maker could lawfully refuse to supply a fair hearing on the basis that it would make no difference. He does however suggest that even on the instrumental view the ‘makes no difference’ argument will rarely hold much ground - because for a variety of practical reasons (see above) it will very rarely be the case. R (National Association of Health Stores) is one of those cases.
What if a fair hearing ‘would make no difference’? Should no such hearing be legally required in such circumstances?
Osborn v. Parole Board [2013]
The purpose of holding an oral hearing is not only to assist in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. The question about whether the prisoner should have an oral hearing is different from the question of whether he has a likelihood of being released, and it cannot be answered by assessing that likelihood. Lord Reed here endorses a non-instrumental, normative view.
The most that we can say is that judges at a high level seem to express different views – but they all say that the ‘makes no difference argument’ does not have much weight. If it does work, it will work very rarely.
What constitutes a fair hearing?
Procedural fairness: a context-sensitive phenomenon
Tucker LJ in Russell v. Duke of Norfolk [1949]
‘There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’
The circumstance of the case, nature of the inquiry, rules applicable to the decision maker and the subject matter of the decision all have an impact on what fairness is. It is a context-based analysis that informs where a case is paced on the fairness spectrum.
What constitutes a fair hearing?
Procedural fairness: a context-sensitive phenomenon
fairness may not require an oral hearing – see, eg, Lloyd v. McMahon [1987] AC 625,
in the course of which Lord Bridge famously observed that
the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals 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.
What constitutes a fair hearing?
Procedural fairness: a context-sensitive phenomenon
Two key considerations help to determine what fairness requires in any given situation.
Factor 1
- First, the more important the matter at stake, the more that will normally be required by means of procedural fairness. See McInnes v. Onslow-Fane [1978] 1 WLR 1520; R (Khatun) v. Newham London Borough Council [2004] EWCA Civ 55 [2005] QB 37; R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763. Here we might think of decisions which affect rights to liberty at one end of the spectrum, and council decisions to impose parking restrictions at the other – the latter would surely only attract the right to make written representations.
- It must also be consider whether the right is vested or otherwise – fairness might be more important if it is vested. Taking something a way from somebody is a more serous thing than deciding not to give something to somebody. Megarry in McInnes distinguishes between application and forfeiture cases. Laws LJ insists that this isn’t the whole story however, who in Khatun insists that the difference between application and forfeiture cases is ‘not hard and fast’.
R v. Secretary of State for the Home Department, ex parte Fayed In ex parte Fayed Mohammed al-Fayed was turned down the right to British citizenship by the immigration office. This was an application case – he didn’t have citizenship which was being taken away. Lord Woolf said that that didn’t preclude the application of natural justice – especially her where right that the individual is applying for is especially important. That hearings should not be regarded as uniformly unnecessary in application cases is manifestly correct. In application cases, just as in forfeiture cases, the decision-maker may have to confront questions which can only be fairly considered by entering into a form of dialogue with the individual concerned. It is the importance of the right/potential benefit – not its vestedness – that has the greatest impact on the required level of fairness.
What constitutes a fair hearing?
Procedural fairness: a context-sensitive phenomenon
Two key considerations help to determine what fairness requires in any given situation.
Factor 2
• Second, the practical usefulness of given types of procedural safeguard will help to determine whether fairness demands their provision. This can be appreciated by reference to the circumstances in which fair hearings are and are not required: compare Lloyd v. McMahon [1987] AC 625 and R (Smith) v. Parole Board [2005] UKHL 1 [2005] 1 WLR 350. Cf R (Booth) v Parole Board [2010] EWCA Civ 1409 [2011] UKHRR 35. Here is where instrumental considerations come in to play – and perhaps we can consider the ‘males no difference’ argument.
Procedural fairness: a context-sensitive phenomenon
Lloyd v. McMahon [1987]
There was a failure by Liverpool City Council to set the lawful rate (a forerunner of council tax) by the required date, which lead to a £100k loss. The district auditor warned councillors on many occasions that if they failed to set a rate within the time limit, they might be personally liable for the losses caused. The auditor found them jointly and severally liable for the loss, after they had made written representations. They applied for review of the decision on fairness grounds. It was held that the case lent itself better to written representations, and that an oral hearing would have added nothing. It was not that kind of case – it is a practical consideration. They also looked back at the statutory scheme and decided that there was nothing there that required an oral hearing.
Procedural fairness: a context-sensitive phenomenon
R (Smith) v. Parole Board [2005]
Prisoner recalled after being accused of being involved in a fight whilst released on licence. The parole board made the decision that the prisoner should not be released, doing so without an oral hearing. Here the HL held that an oral hearing was necessary. The justification came from Lord Bingham – the normative issue was that a person’s liberty was at stake. There was also a practical consideration here though – the decision should have turned on questions of fact – what was the prisoner’s involvement, etc. Oral hearings allow decision makers to assess facts more effectively than any other way, for example by enabling them to assess truthfulness and credibility of the parties involved.
The right to know the opposing case (/the duty to give notice).
of Lord Denning MR in Kanda v. Government of Malaysia [1962] AC 322 at 337:
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.
The right to know the opposing case (/the duty to give notice).
Why is it fundamental?
The right to be told the case against you is a fundamental requirement of due process. No amount of procedural fairness will help you if you don’t know what case, or allegations you are facing. Lord Hope in AF (No.3): ‘denunciation on grounds that are not disclosed is the stiff of nightmares’. The fundamentality of the right is illustrated by Josef K.’s arrest in Franz Kafka’s The Trial.
The right to know the opposing case (/the duty to give notice).
For illustrations of the importance attached to this principle, see:
- Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 Police officer did not know the allegations against him – he was dismissed due to information that the police force had received about his private life.
- R v. Norfolk County Council, ex parte M [1989] QB 619 There was a breach of notice where the applicant’s name was added to a register of known and suspected child abusers, and his employer was told. He wasn’t made aware of the allegations against him.
- R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763 The Minister wasn’t required to assign any reason for the refusal of an immigration application. Did this displace the duty to give notice? The court said the right to notice was a cardinal aspect of due process. This illustrates a judicial commitment to the duty to give notice.
The right to know the opposing case (/the duty to give notice)
On the limits of the right to notice: R v. Gaming Board for Great Britain, ex parte Benaim and Khaida [1970]
The Gaming Board’s consent for a license application was sought. There was a hearing, but the application was ultimately unsuccessful. There was a question of whether there was a failure to give adequate notice. Lord Denning said that there was ‘no need to give every detail’, and that ‘general objections [in this case to the merits of the application] would suffice’.
The right to know the opposing case (/the duty to give notice)
Special advocates
Recently, the House of Lords has had to consider to what extent the use of ‘special advocates’ – and the associated curtailment of the individual’s right to know the evidence against him – is compatible with notions of fairness:
A special advocate is a lawyer who is appointed to represent a party’s interests in closed proceedings, i.e. proceedings form which they have been excluded. Special advocates are generally prohibited from discussing any evidence that has been the subject of closed proceedings with the excluded party. They are most often used in the context of cases involving national security but have also been used in other matters, including parole board hearings and data protection claims.
Where they are used, the proceedings are split into two parts. There are open proceedings, where all evidence is disclosed to the individual and the lawyer, with both present. There are also however parallel closed proceedings. Only the special advocate is present, and the closed evidence is disclosed only to him. Thereafter, there is no contact with the individual concerned. This of course raises patent issues of procedural fairness. Can the party truly be said to know the case against him? Has the duty to give notice been discharged?
The right to know the opposing case (/the duty to give notice)
Special advocates
Roberts v. Parole Board [2005]
Lifer eligible for release but there were allegations of drug dealing against him. This information was given to the parole board, but not Roberts. A Special Advocate was appointed. There is in a case like this a ‘triangulation of interests’ – held by the prisoner (fairness), the public (justice/public safety), and the informant (personal safety).
Against this background, the HL had to decide two issues: (a) if it was lawful to deny full information to the prisoner; and (b) whether the special advocate process met the requirements of procedural fairness, specifically the duty to give notice.
The majority held that there was a minimum required level of fairness, but not disclosing elements of the evidence is not necessarily unfair. In principle, doing what the parole board had done was potentially lawful (Given the way the appeal was framed, the court didn’t have to decide on it’s actual legality). The minority (Steyn and Bingham) however argued that without the individual present, there was a ‘phantom hearing’ only. A procedure like this is unlawful in the absence of specific legislative permission from parliament – and indeed ‘contrary to the rule of law’.
The right to know the opposing case (/the duty to give notice)
Secretary of State for the Home Department v. MB [2007] UKHL 46 One of the cases brought under the Prevention of Terrorism Act (now repealed).
• Section. 2 said that the Home Secretary could impose control orders restricting movement and communication where this was necessary for public protection.
• Section. 3 said that permission of the court was required, and that they would have to decide if the decision was ‘flawed’ – effectively immediate and automatic judicial review.
• Sched. 1 procedural rules must ensure court is ‘required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest’.
The challenge in this case was founded on the ECHR, and concerned procedural fairness of Special Advocates (SA).
Held that in principle, the SA procedure could reconcile the lack of notice with the duty to act fairly. Lord Brown said that fairness is not an absolute right – but it is too important ‘to be sacrificed on the alter of terrorism control’. He actually went as far as to say that the SA procedure would suffice absent ‘exceptional circumstances’. Lord Carswell said that cases like this involve the balancing of two interests – those of the public and those of fairness, but it is ‘possible to accommodate both within the appropriate balance’.
The right to know the opposing case (/the duty to give notice)
Secretary of State for the Home Department v. AF (No 3) [2009]
Three people had been subjected to control orders as above, none of them had been told of the allegations against them in specific detail – The Home Secretary essentially just outlined suspicions without making them aware of the actual evidence. He was agreed because he didn’t even know the gist of the case against him – without which he couldn’t’ compile a defence. The court essentially reversed MB, by saying that there must be enough information given in order to allow the ‘giving of effective instructions’ (by the accused). This defines what the gist is – it’s enough to be able to compile an effective defence. Details/sources need not be provided, but if the open material consists only of bare accusations then that can never discharge the duty to give notice and the procedure would be unfair, never mind the cogency or otherwise of the undisclosed evidence. (Normative?) Lady Hale expresses regret about her ‘sanguine’ approach in AF.
AF establishes that where Art.6 applies, fairness demands the disclosure of the core of information that would allow an accused individual to truly refute the case made against them. It follows that the government now has to balance whether the risk of not subjecting an individual to a control order is enough to outweigh the risk to national security. Forsyth refers to the ‘heart of the decision’, where the gist is not disclosed. To what extent is the approach adopted in AF (No 3) relevant to circumstances in which the ECHR is inapplicable, such that the matter falls for decision at common law only? See Al Rawi v Security Service [2011] UKSC 34 [2011] ‘it is not for the courts to extend [this] controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far’ and thus such procedure can only be introduced by legislation.’ 3 WLR 388 and Bank Mellat v HM Treasury (No 1)[2013] UKSC 38.
The right to know the opposing case (/the duty to give notice)
A v UK
ECtHR, where it was held that a procedural regime comparable to control order cases did not provide the procedural fairness that Art.6 requires. Lord Hoffmann said in AF that the ECtHR was ‘wrong’ in A v UK and might destroy the system of control orders which is a significant part of the country’s defences against terrorism. Nonetheless, the court felt bound by that decision so applied it. Lord Rodger: ‘Strasbourg has spoken, the case is closed’. This leaves open the possibility that at common law, the court may decide to revert to the position in MB, not being bound by any Strasbourg authority.
The right to know the opposing case (/the duty to give notice)
Bank Mellat v HM Treasury (No 1)[2013]
The SC decided for the first time that they were capable of carrying out a ‘closed material procedure’, or ‘CMP’, where one party (and their lawyer) was excluded from a portion of the proceedings.
The majority held, in the light of immense countervailing pragmatic difficulties, to allow the procedure. ‘By placing emphasis on Article 6—and, implicitly, on the Strasbourg Court’s decision in Chahal v UK holding that CMP can be compatible with Article 6—the majority failed sufficiently to acknowledge that the common law may have something to say about all of this, and that it might impose requirements more demanding than those deriving from the Convention.’ (Elliott) The procedure has Canadian origins but was its adoption in the UK was ‘encouraged’ by the Human Rights Court in Chahal (1996) 23 EHRR 413 recognising that there were techniques that might protect sources and still ‘accord the individual a substantial measure of procedural justice’.
The minority approached the question from a common law point of view – suggesting that the sceptical approach it takes toward any argument that there could be legitimate ‘closed justice’ is important, and indicative of it’s capacity to uphold fairness.
‘Constitutional rights in the UK are, even at their highest, precarious: clearly-worded legislation will always be able to restrict or abolish such rights for as long as the notion of parliamentary sovereignty continues to apply. Common law constitutional rights therefore only exist as legal constructs in the sense, and to the extent, that courts are prepared to confer interpretative protection upon them.’ (Elliott; http://bit.ly/1fMxRmm)
The right to know the opposing case (/the duty to give notice)
It seems that there are a few questions which are now asked:
(1) Is the procedure permitted? You must now have express or implicit statutory authority to use the special advocate procedure. It hasn’t actually posed a difficulty – the courts (as we see in Roberts) are quite willing to imply such a statutory authority within the underlying legislative framework. This is quite unfortunate, really.
(2) Is the procedure prima facie compatible with Art.6? Sometimes the justifications for using it will not satisfy the proportionality test? Tariq v Home Office says that in civil cases it will be much easier to satisfy this requirement, whereas it will be much harder in criminal proceedings.
(3) Is the particular conduct in that particular case compatible with Art.6? You can be creative about reconciling the conflicts between different rights – perhaps the state could be under a positive obligation to impose a witness protection scheme, or put a defendant under a restraining order.
Cross-examination
When should cross-examination of witnesses be permitted?
R v. Board of Visitors of Hull Prison, ex parte St Germain(No 2) [1979]
Prisoners were charged with disciplinary offences after a prison riot.
The court held that there was a necessity for cross examination on the facts - liberty was at stake, given that they could have time added to their sentence. The court also considered the position of hearsay evidence – saying it was not in principle inadmissible, but there is an ‘overriding obligation to provide a fair hearing’, which will usually necessitate cross-examination of hearsay evidence.
Cross-examination
When should cross-examination of witnesses be permitted?
R (Bonhoeffer) v General Medical Council [2011]
Consultant pediatrician was facing ‘fitness to practice proceedings’ on the basis that he was alleged to have sexually assaulted children whilst working in Africa. The alleged victims were in Kenya, so most evidence was hearsay from Witness A. ‘It is hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume a greater importance to a professional man faced with such serious allegations.’
A similar position obtains under Article 6(3)(d) ECHR, which requires that one ‘charged with a criminal offence’ (which includes certain breaches of prison rules: see Ezeh v. United Kingdom (2004) 39 EHRR 1) must be afforded the opportunity to ‘examine or have examined witnesses against him’.
However, cross-examination will certainly not always be required. We need to look at the context.
Cross-examination
When should cross-examination of witnesses be permitted?
R v. Commission for Racial Equality, ex parte Cottrell and Rothon [1980]
Lord Lane CJ said:
It seems to me that there are degrees of judicial hearing, and those degrees run from the borders of pure administration to the borders of the full hearing of a criminal cause or matter in the Crown Court. It does not profit one to try to pigeon-hole the particular set of circumstances either into the administrative pigeon-hole or into the judicial pigeon-hole. Each case will inevitably differ, and one must ask oneself what is the basic nature of the proceeding which was going on here. It seems to me that, basically, this was an investigation being carried out by the commission. It is true that in the course of the investigation the commission may form a view, but it does not seem to me that that is a proceeding which requires, in the name of fairness, any right in the firm in this case to be able to cross-examine witnesses whom the commission have seen and from whom they have taken statements. I repeat the wording of section 58 (2) in emphasis of that point: “If in the course of a formal investigation the commission become satisfied that a person is committing, …” and so on. It seems to me that that is so near an administrative function as to make little difference and is the type of investigation or proceeding which does not require the formalities of cross examination … [I]t seems to me that the decision [in the St Germain case] … was based upon facts widely differing from those in the present case. That was truly a judicial proceeding carried out by the prison visitors, and the complaint there was that there had been no opportunity to cross-examine prison officers in hotly disputed questions of identity. Speaking for myself, I derive little assistance from any dicta in that case.
A firm of estate agents were accused of operating their business in a manner that was racially discriminatory. They only had the opportunity to make written/oral submissions. It was held that not having cross examination of the witnesses who the commission had seen was lawful here. The case was distinguished rom the St Germain on the basis that this was an investigation ‘so near an administrative function as to make little difference’ as opposed to a judicial hearing. However, given the implications of this investigation, it is worth questioning whether that distinction can actually be meaningfully drawn.
Representation
When does fairness demand that an individual should be allowed to argue his case through a representative?
The requirement for legal representation is often attributed to the ‘equality of arms’ principle, which says that, in general, fairness requires a level playing field. On the general principles, see R v. Secretary of State for the Home Department, ex parte Tarrant [1985]
Prisoners charged with disciplinary offences for the assault of a prison officer, and others for mutiny. The cases were heard by Boards of Visitors, who were empowered to impose a range of penalties, from stoppage of earnings to cellular confinement. The claimants’ requests for representation, or the help of a friend or advisor were rejected. Three of the five cases resulted in convictions. The claimants sought JR.
It was held that the board should have taken in to account certain considerations when determining whether representation or assistance should have been allowed. The seriousness of the charge/potential penalty; whether any points of law might arise – the Home office has a statutory duty to ensure that prisoners understand any charges against them, and the board’s lack of legal qualification might necessitate representation; the capacity of the prisoner to present his case; procedural difficulties; the need for reasonable speed of adjudication and the need for fairness as between prisoners and prison officers. The distinction was drawn between the assault charges and the much more complicated mutiny charges - it was held that on the facts the mutiny charges necessitated representation. The prisoners did not understand what the word meant, so weren’t aware of the charge against them.
Representation
a cautious note was struck by Lord Goff in R v. Board of Visitors of HM Prison, The Maze, ex parte Hone [1988]
(actually endorsing the approach of Webster J in Tarrant).
it is easy to envisage circumstances in which the rules of natural justice do not call for representation … as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public interest.
Note also the relevance of Article 6(3)(c) ECHR: legal representation when ‘charged with a criminal offence’ (but this extends to some matters not classified as criminal under domestic law, eg certain breaches of prison rules: Ezeh v. United Kingdom (2004) 39 EHRR 1), and free legal representation if lack of ‘sufficient means’ and the ‘interests of justice so require’. Prison cases often fall within this bracket, especially where the legal issue involved is complex.
Representation
What about non-criminal proceedings which are covered by Article 6(1)? Is free representation a necessary ingredient of a fair hearing for Article 6(1) purposes?
Steel and Morris v. United Kingdom (Defendants in the McLibel case appealing to Strasbourg on HR grounds, having been denied free representation against the multinational) (ECtHR, application no. 68416/01, judgment 15/02/2005):
The Government have laid emphasis on the considerable latitude afforded to the applicants by the judges of the domestic courts, both at first instance and on appeal, in recognition of the handicaps under which the applicants laboured. However, the Court considers that, in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the applicants as litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel … The very length of the proceedings is, to a certain extent, a testament to the applicants’ lack of skill and experience. It is, moreover, possible that had the applicants been represented they would have been successful in one or more of the interlocutory matters of which they specifically complain, such as the admission in evidence of the Haringey affidavit (see paragraph 21 above). Finally, the disparity between the respective levels of legal assistance enjoyed by the applicants and McDonald’s (see paragraph 16 above) was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal.
The question was whether it would be a breach of Art.6 to deny somebody free representation in a non-criminal case (the McLibel litigation, where McDonalds sued a couple for producing leaflets with information about cancer and heart disease’s links to saturated fat consumption). It was held that the UK did need to fund the accused’s legal battle under Art.6(1), given the extraordinarily complex nature of the facts of that case – there were over 100 days of legal argument, 130 witnesses, and 40,000 pages of legal argument.
2.5 Appeals
Two issues, issue (1)
First, does fairness require the possibility of appeal against a first instance decision?
On this question, see Ward v. Bradford Corporation (1972) 70 LGR 27 at 35, per Lord Denning MR:
Natural justice does not require the provision of an appeal. So long as the party concerned has a fair hearing by a fair-minded body of men that is enough.
Appeals
Two issues, issue (2)
where a right of appeal exists, what are the implications of this vis-à-vis unfairness at first instance?
On this question, see Calvin v. Carr [1980] AC 574, in which Lord Wilberforce distinguished various categories of case:
A horse that was expected to win only came 4th. The stewards held an enquiry in which the horse owner’s rights to racing etc. were removed on the basis of the requirement that ‘every horse must run on its merits’, a decision made in a very rough and ready way. There was then an appeal in which all the procedural trappings were allowed.
The court had to consider whether the fair hearing on appeal had a curative effect.
First there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. Examples of this are De Verteuil v. Knaggs [1918] A.C. 557, 563; … and see also Ridge v. Baldwin [1964] A.C. 40, 79, per Lord Reid.
Where there is a rehearing by a version of the original body, the new decision will supersede the old. This is at least true in a contractual context (as in Calvin v Carr) where the parties can be said to agree to accept the outcome of the rehearing. The nature of decisions like this is that they need to be taken quickly - so perhaps that is an argument for allowing later appeals to have a curative effect on the lack of initial procedural fairness.
Appeals
Conversely:
At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment, etc.)
the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage. (Megarrry J had said in an early case, Leary, that this was a rule of general application. Lord Wilberforce rejected that argument here – it is too broadly stated.)
There was also
the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect.
Standard of review
Should the court confine itself to asking whether the body under review had come to a Wednesbury reasonable view of what would be fair, or should the court decide for itself what fairness demanded and quash any decision made pursuant to a procedure falling short of the requisite standard? In other words, is review “soft-edged” or “hard-edged” in this area?
- Occasionally one finds suggestions—whether from counsel or in judgments—that review is soft-edged: that a decision will be rendered unlawful only by an unreasonable departure from the requirements of procedural fairness: see, eg, R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin).
- The better view, however, is that review here is hard-edged, albeit that, in applying that approach, reviewing courts may have to rely to some extent upon the inferior body’s assessment of what the situation is, since the nature of that situation will affect what fairness requires in the circumstances. See R (Booth) v Parole Board [2010] EWCA Civ 1409 [2011] UKHRR 35 and Osborn v. Parole Board [2013] UKSC 61.
Void or voidable?
Ridge v. Baldwin brought wit hit a rash of conflicting opinions about whether failure to give a fair hearing rendered the dismissal of the chief constable void or voidable. In the long history of cases on natural justice as applied to administrative action, this question has not been agitated, simply because the logic had not necessitated it. Before Ridge the duty to act fairly was treated as an implied statutory requirement, so the failure to do so would render an action ultra vires and the determination null and void. The majority in Ridge however stated that the watch committee’s decision would void if the decision was held to be taken without regard to the requirements of natural justice. The minority argued that these decisions should only be voidable in the interests of allowing a measure of judicial discretion. An end was put to these arguments when the court stated with clarity in Anisminic that an order made contrary to the requirements of natural justice was outside jurisdiction and void.
Why should there be a duty to give reasons for administrative decisions?
Instrumental reasons:
The duty to give reasons is “a central facet of procedural fairness” (Elliott, 412). It is an adjunct then to the traditional maxims: audi alteram partem and nemo judex in sua causa.
The reasons for this are not hard to find (See Fordham, 1998):
(a) The duty ensures that decision-makers’ minds are focussed on the task at hand and ensures that they make better decisions. This is an instrumental reason for requiring reasons: the requirement is an instrument or tool for the achieving of an approved purpose.
(b) they enable the person affected to judge whether the decision has been properly taken (reasons may reveal, for instance, an irrelevant consideration was taken into account in making the decision) (we shall return to this);
(c) and reasons may assist the judicial review court in assessing whether the decision is properly taken.
Why should there be a duty to give reasons for administrative decisions?
There are also non-instrumental, or normative reasons for reasons:
(a) The giving of reasons for decisions may show respect for the individuals concerned. Such respect makes the unfavourable decision more palatable. See TRS Allan, “Procedural Fairness and the Duty of Respect”.
But when the instrumental reasons for reasons are weak or non-existent (so the giving of reasons will make no difference) then it may appear patronising to insist on reasons for non-instrumental reasons.
Sight should not be lost of the reasons for not giving reasons; i.e. burdens on government, cost pressures and the ‘judicialisation’ of administrative decision-making.
No duty at common law to give reasons
Although in the past it was clear that there was no duty at common law to give reasons for a decision (e.g. R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417 (CA)), it is increasingly clear that there are many circumstances in which an administrative authority which fails to give reasons will be found to have acted unlawfully.
The HL has recognised “a perceptible trend towards an insistence on greater openness …or transparency in the making of administrative decisions” (ex p. Doody ibid) and consequently has held that where, in the context of the case, it is unfair not to give reasons, they must be given. Moreover, the authority seeking not to give reasons must show that that procedure is not unfair (ex parte Doody at 561A).
No duty at common law to give reasons
When is it unfair to refuse reasons.
(a) Decisions that appear aberrant without reasons have to be explained, so that it may be judged whether the aberration is real or apparent.
R. v. Civil Service Appeal Board ex p. Cunningham [1991]4 All ER 310 Cunningham was a civil servant who was unfairly dismissed. Because he was civil servant, he had to go to the civil service appeal board. In doing so he got about half the compensation for unfair dismissal that he would have got from an employment tribunal, and no reasons we given. His solicitor asked for reasons. The decision appeared aberrant, and had to be explained – it was held that reasons were required. Natural justice demanded the giving of reasons both in deciding whether dismissal was unfair and in assessing compensation, since other employees were entitled to appeal to industrial tribunals which were obliged by law to give reasons.
No duty at common law to give reasons
When is it unfair to refuse reasons.
(b) Similarly, where the decision-maker departs from a previously adopted policy (even if not published) fairness will require that departure to be explained and justified.
R. v.North Derbyshire Health Authority ex p. Fisher [1998]10 Admin LR 27 The NHS Executive’s policy to introduce a new and expensive drug wasn’t adopted. If a decision maker has a policy and suddenly decides not to explain himself, then the situation appears aberrant and reasons have to be given. Because they weren’t the decision was quashed.
No duty at common law to give reasons
When is it unfair to refuse reasons.
(c) Cases in which the interests concerned (for instance, personal liberty) are “so highly regarded by the law that fairness requires that reasons…be given as of right”.
R. v. Higher Education Funding Council ex p. Institute of Dentistry [1994]1 WLR 242 at 263, per Sedley J interpreting ex p. Doody). The HL held that a mandatory life prisoner should be able to make meaningful representations to the Home Secretary on what his “tariff period” should be, thus where the Home Secretary was minded to depart from the judicial recommendation of “tariff” he has to disclose his reasons to the prisoner.
No duty at common law to give reasons
When is it unfair to refuse reasons.
(d) Where the failure to give reasons may justify the inference that the decision was not taken for a good reason.
R. v. Secretary for Trade and Industry ex p. Lonrho plc [1989]1 WLR 525 at 540 (“if all the other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reason for his decision” (Lord Keith). This is really about rationality rather than the duty to give reasons. It is a high burden, rarely satisfied – especially if all the facts point the other way.
When Reasons do not need to be given
In formal law if the decision is not aberrant, and there is not a fundamental interest affected, then reasons don’t have to be given.
When Reasons do not need to be given
R. v. Higher Education Funding Council ex p. Institute of Dentistry [1994]
(Sedley J):
“it may place an undue burden upon decision-makers; demand an appearance of unanimity when there is diversity; call for articulation of sometimes inexpressible value judgments; and offer and invitation to the captious to comb the reasons for previously unsuspected grounds of challenge” Thus there are cases in which reasons need not be given even where fairness may appear to require reasons.
The Institute of Dentistry had had their research downgraded by the funding council. As a result they had their research funding quite sharply cut. The chief grounds of their challenge was that they hadn’t been given reasons as to why their research had been downgraded. Sedley LJ said that the decision required an ‘inexpressible value judgement’. But perhaps the decision was not something inherently incapable of rational analysis. On occasion, surely giving reasons could expose matters that are self-evidently incorrect. If you get reasons for a poor examination result, you may notice that a question had not been marked, for example.
When only brief reasons need to be given
Where the case for reasons is strong but there is some countervailing reason to restrict the duty, the tendency is to accept or require only brief reasons. The publication of a short Press Notice containing “brief reasons” sufficed when the Secretary of State made a controversial decision following a complex consultation process that would increase the amount of aircraft noise near Heathrow (R. v. Secretary of State for Transport ex p. Richmond-upon-Thames LBC [1996] COD 426). There was only a press release given giving brief reasons for why the decision was taken. That was held to be enough
When only brief reasons need to be given
Is it satisfactory that there should be a relatively wide duty to give reasons of little depth?
Perhaps giving brief reasons might appear to deal with the person adversely affected with respect and dignity, a non-instrumental justification. However, on an instrumental level, what is the point?
From the forthcoming edition of W & F:
Where a challenge to a decision notice made by the Financial Services Authority involved a full rehearing (in which the reasons played little part) the reasons need simply explain why the decision was made and not deal with every submission made by the recipient of the decision notice. (R (Willford) v Financial Services Authority [2013] EWCA Civ 677, paras 49-52.)
How might a general duty to give reasons develop?
An important consideration underlying the extension of the duty to give reasons, referred to in many cases, is that without reasons the person affected may be unable to judge whether there has been “a justiciable flaw in the [decision-making] process” (ex p. Institute of Dentistry at 256) – and therefore whether an appeal, if available, should be instituted or an application for judicial review made.
It is quite often that parties will be able to say that not being given reasons has denied them effective recourse to JR (especially given the breadth of powers which can now be subject to it) – i.e. how do they know where to seek review or not? A general duty to give reasons is latent in this argument.
How might a general duty to give reasons develop?
What does Forsyth argue?
‘The rule should not be unduly onerous, since reasons need never be more elaborate than the nature of the case admits, but the presumption should be in favour of giving reasons, rather than, as at present in favour of withholding them’.
It must be noted that the breadth of the statutory regime imposing a duty to give reasons (on many tribunals and administrators) (see below) eases the tension that was at one stage pressing towards a general duty to give reasons. The range of situations in which it is unfair to give reasons is also growing, and furthermore it is a bold decision maker that will go forth and defend their decision to not give reasons. There is no real necessity at the moment to find a general duty to give reasons, because of these factors.
What is the effect of a failure to give reasons?
Where leave to apply for judicial review is granted the decision-maker must reveal why the challenged decision was made (R. v. Lancashire County Council ex p. Huddleston [1986] 2 All ER 941 at 945). The applicant is in a position of ignorance, whilst the decision maker knows everything about the situation. This is an imbalance litigated when you apply for JR. The decision maker then has five days to respond in an affidavit. Thus the question arises whether a failure to give reasons at or about the time of the disputed decision, may be remedied by reasons given much later in the respondent’s affidavit to the grant of JR proceedings.
If the duty to give reasons is an element of natural justice, the failure to give reasons, like any other breach of natural justice, should render the disputed decision void. And a void decision could not be validated by late reasons even if they show that the decision was justified. If we were right about the failure to give reasons being a central facet of procedural fairness, then surely this would be the case. “If only the situation were so simple”.
What is the effect of a failure to give reasons? What have the courts done?
Consistent with this analysis the CA has quashed a decision that an applicant was intentionally homeless notwithstanding that the bad reasons given when the decision was made were supplemented by good reasons given in the respondent’s affidavit (R. v. Westminister City Council ex p. Ermakov [1996]2 All ER 302). If we were right in the analysis that a failure to give reasons is a breach of natural justice, which renders a decision void, then surely it cannot have life breathed into it by sound reasons given ex post facto, as a matter of logic. It is legally non-existent. This was the approach in Ermakov.
What is the effect of a failure to give reasons? What have the courts done?
Court of Appeal said in R. (S) v. Brent LBC [2002] EWCA Civ. 693, para. 26 (Schiemann LJ)
‘It is not ordinarily open to a decision maker, who is required to give reasons, to respond to a challenge by giving different or better reasons.’ There is always the danger that the decision-maker in giving supplementary reasons may drift ‘perhaps subconsciously, into ex post facto rationalisation’ of the decision. Decision-makers should not be given ‘a second bite at the cherry’.
What is the effect of a failure to give reasons?
But the courts are reluctant to quash sound decisions marred only by a technical failure of reasons.
indeed, one can understand why. Judges think about how they can fairly reach the best outcome in cases, rather than the technical basis of classical administrative law. e.g. R. v. Northampton County Council ex p. W [1998] COD 108, where the affidavit ‘amply justified the decision’.
Where the reasoning of the decision-maker is exemplary but the account given of that reasoning is defective, it is appropriate to allow the error to be set right provided that is done soon after the error is discovered. This seems to Forsyth to be the sort of case where it is proper to say that good reasons different to those given initially are provided at a later stage, then that should make right the initial apparent wrong. But this principle must be applied with caution. Amplification of reasons can too easily be transmuted into improvement or replacement of reasons that do not reflect the actual reasoning of the decision-maker. This could be a way of finding a middle ground between the cases.
The adequacy of reasons
Given that statute (in particular the Tribunals and Inquiries Act 1992, s.10) now frequently requires reasons or it is clear that the common law requires reasons, disputes often concern whether the reasons given are adequate.
The adequacy of reasons
South Bucks District Council v. Porter (No 2) [2004] UKHL 33;[2004]1 WLR 1953, para. 26, per Lord Brown:
‘The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. …. Decision letters must be read in ‘a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.’
Note though that the CA has said that to quash a judicial decision simply because of a failure to give adequate reasons ‘is likely to be a disproportionate and inappropriate response’ (Adami). Thus where a judge’s decision is appealed simply on the ground of inadequate reasons, the judge should have an opportunity to amend his reasons.
Article 6 and Reasons
Article 6 generally requires reasons to be given with the decision Hadjianastassiou v Greece (1993) 16 EHRR 219, which says that “courts must indicate with sufficient clarity the grounds on which they based their decisions”.
However, as we know. Article 6 does not apply generally to administrative decisions, so the common law remains vital. Indeed there are many decision makers that don’t fall within the ambit of Art.6, which is why the common law remains of real importance when it comes to the duty to give reasons.
Furthermore, Strasbourg has said that “the extent to which the duty to give reasonsapplies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case”. Kennedy v United Kingdom [2010] ECHR 26839/05.
What is natural justice concerned with?
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.
What is the normative basis for natural justice?
• 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:
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
• 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.
Fair hearing
Why context is everything
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 / quasi-judicial one —given the conditions in which airport immigration officers work, having to make on-the-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.
Fair hearing - what is the correct standard?
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.
Fair hearing
How does the scale slide between natural justice and more general duty of fairness?
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.
Fair hearing
How wil lthe court construe the ouster clause?
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 £100k 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”.
ORAL HEARINGS
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.
ORAL HEARINGS
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:
Closed material procedures:
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.
Closed material procedures:
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.
Closed material procedures:
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 …in 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.
Closed material procedures:
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:
Principle of open justice:
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.
Special advocates
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’.
This prompted the introduction of CMPs in legislation such as the Counter Terrorism Act 2005. The HL considered the role of special advocate procedures in R(Roberts) v Parole Board [2005]
Special advocates
R (Roberts) v Parole Board [2005]:
• a special advocate procedure was adopted by a parole board.
o Lord Woolf: this was compatible with natural justice and Art. 5 and 6 of the ECHR. Procedural fairness is not a fixed concept and depended on the circumstances of the case, the use of a special advocate here would protect the public and mitigate injustice. However, “special advocates should not be used any more than necessary” and will not alone comply with “the overriding obligation of a hearing to meet the requirements of Art. 5 and of appropriate standards of fairness required by domestic law” —it is “never a panacea for the grave disadvantages of a person not being aware of the case against him.”
o Lords Bingham and Steyn: dissent on the basis the procedure was incompatible with the principle that C should have the opportunity to respond to allegations against him.
NOTICE
In contrast to the court’s refusal to find a CL duty to give reasons, the HL have found a core right to be notified of an adverse decision.
NOTICE
R (Anufrijeva) [2003]:
• C’s asylum application was rejected, but the HS’s determination of her application was not communicated to C (C discovered it when applying for benefits). HL: notice of the administrative decision had to be communicated before it could have the character of a determination with legal effect. Confirmed that clear statutory wording would be required to oust such a right —general words not enough.
o Lord Steyn: “Notice of a decision is required before it can have the character of a determination with legal effect because the individual… must be in a position to challenge the decision in the courts… This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system.”
NOTICE
Bank Mellat [2013] SC:
statutory instrument used to suspend BM’s operations in the UK was flawed because the treasury failed to give adequate notice to BM before making the instrument.
o Lord Neuberger: before such a statutory power is exercised “any person who foreseeably would be significantly detrimentally affected… should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances… would render it impossible, impractical, or pointless.”
o Lord Sumption: the duty to give notice and the opportunity to make representations is “one of the oldest principles” of public law. This case illustrates the usefulness of the duty to give notice and opportunity to respond —Treasury made significant factual errors (e.g. believed BM was controlled by Iran) and the decision making process would have been of higher quality had the Treasury afforded BM the opportunity to respond.
NOTICE
Parliamentary sovereignty:
Where Parliament has reviewed a statutory instrument, respect for this oversight means the courts should be cautious before holding it unlawful. This is particularly true where the SI is one of general application but where it is targeted at particular individuals and impacts their personal / property rights, it holds less strength.
THE RULE AGAINST BIAS
Two forms of bias
• Direct interest of a DM in the outcome of a case (e.g. financial, personal etc.). Here the decision will be automatically void, irrespective of whether the DM was in fact biased.
• Impression of bias: where there is a risk / appearance of bias based on the circumstances.
AUTOMATIC DISQUALIFICATION
Financial interests:
Where DM has a pecuniary or proprietary interest in the case, the decision will automatically be void regardless of whether the DM was actually biased. However, where the DM makes full disclosure, a party may waive his right to object.
AUTOMATIC DISQUALIFICATION
Financial interests:
Justifying the rule
clear argument is undisclosed pecuniary / proprietary interests will always create the impression of bias, even if it does not cause actual bias. However, Olowofeveku argues that it may actually undermine the integrity of the administration of justice by creating the perception that there is a problem of bias in the system and argues that a “real danger / reasonable apprehension test” would be more appropriate. His point is if that although the automatic rule is expedient, it results in disqualifications where, on further investigation, there was never any risk of actual bias. indicating that there is an endemic problem with the system. EP: don’t agree with Olo —a robust rule creates a ‘no-tolerance’ impression.
AUTOMATIC DISQUALIFICATION
Financial interests:
The automatic disqualification tool is not as blunt as Olo suggests —it seems remote financial interests will not fall within the scope of the test:
Locobail [2000]:
• judge discovers that Herbert Smith (a firm of which he was a senior partner), was acting in other proceedings against a defendant appearing before him. He made full disclosure to D, who raised no objection. He finds against D, who then makes an application for a rehearing before a new judge. CA:
o Automatic disqualification: there is an exception to the rule where “the potential effect of any decision on the judge’s personal interest is so small as to be incapable of affecting his decision.” However, “any doubt should be resolved in favour of disqualification.” In this case, there must have been more than just “the tenuous connection between the firm’s success in an individual case on the one hand and the firm’s goodwill and the level of profits on the other.”
o On the waiver: any waiver must be clear and unequivocal, with full knowledge of the facts. Here, there was such a disclosure, D had lawyers who could have advised her / asked the judge to recuse himself. They did nothing until she had lost.
Despite Locobail, the test is not a substantive evaluation of the circumstances designed to only catch financial interests which raise a reasonable apprehension of bias.
• Elliot: as the policy beneath both rules is the same, it may be better to have a single rule based on the apprehension of bias.
AUTOMATIC DISQUALIFICATION
Non-financial interests:
ex parte Pinochet (No 2) [1999]
Pinochet, former dictator of Chile. HL decided P could be extradited to Chile to face prosecution for war crimes. P challenged this decision on the ground that Lord Hoffmann, who heard the case, was the Director of Amnesty International and Amnesty had been an intervener in the case arguing that C should be extradited. HL: decision should be set aside. Lord B-W:
• Two types of disqualification: the “fundamental principle is that a man may not be a judge in his own cause” this has two implications: (i) if a judge is “party to the litigation” or has “financial or proprietary interest in its outcome” then he is automatically disqualified; (ii) no direct interest “but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial” e.g. by his friendship with a party.
• This case falls in the first category: the automatic qualification rule applies “just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.” This is necessary to protect “the absolute impartiality of the judiciary”
• Summary: “If a direct interest, including a non-pecuniary interest, of a person in a judicial capacity can be shown, the court is not required to inquire whether there was any real likelihood of bias: just have this automatic disqualification.”
Pinochet is a slight extension of the automatic qualification rule, as it now applies to non-pecuniary interests. Elliot criticises the decision It blurs the distinction (along with Locobail) between the two categories: the more context-sensitive the direct disqualification rule becomes, the closer it looks to the apprehended bias rule, calling into question the need for the former.
• Unclear how limited this rule is. Elliott thinks it should be construed narrowly, otherwise the application of the test could cause delay and increased cost.
APPREHENSION OF BIAS
In cases other than: (i) pecuniary / proprietary interest; (ii) non-pecuniary interest in a particular cause involved in the case there have traditionally been two competing tests, both resulting in disqualification:
• Real likelihood of bias: high standard of proof of risk
• Reasonable suspicion of bias: slightly lower standard of proof.
Both tests are based on the principle that justice must be seen to be done—the integrity of the legal and administrative systems would be undermined if it looked like biased decisions were being made.
APPREHENSION OF BIAS
Metropolitan Properties v Lannon [1969]:
• Rent Officer fixed fair rents for some social housing at very low rates, which would serve as a guide for other private rent levels in the area. Landlords argued D had so acted to assist his father as he lived nearby. CA: quashed the decision:
o Denning: “there must appear to be a real likelihood of bias … There must be circumstances from which a reasonable man would think it likely or probable that the DM … would or did favour one side unfairly at the expense of the other”
o Edmund-Davies: preferred the ‘reasonable suspicion’ test — ‘real likelihood’ test does not fulfil the requirement that justice must be seen to be done.
APPREHENSION OF BIAS
R v Gough [1993]:
• a juror realised she had a connection with the man on trial after the verdict had been delivered (hadn’t realised she knew his brother). HL (Lord Goff): rejects the ‘reasonable suspicion’ test, preferring ‘real danger’ —the court should “think in terms of possibility rather than probability of bias” and should ask itself whether there was a “real danger of bias”. Here there was such a real danger and the verdict should be set aside.
The difficulty with Gough is that it considered the test from the perspective of the court rather than from the perspective of the reasonable person, despite Goff suggesting the court exemplifies the reasonable person. HC of Australia refused to follow Gough in Webb [1994]: “public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question.”
In light of these difficulties Lord B-W thought the test may need to be reconsidered in Pinochet and the HL departed from it in Porter, a case decided under Art. 6 ECHR:
APPREHENSION OF BIAS
Porter v McGill [2001]:
Conservative members of Westminster City Council increased the sale of council houses to owner-occupiers, with the purpose of increasing the number of Conservative voters. The auditor examining their actions, made public his views that they were culpable before the decision was formally made. HL: there was no infringement of the councillors’ Art. 6 rights and thy suffered no unfairness at common law. Lord Hope:
o Difficulties with the ‘real danger’ test: (i) out of step with the CL world, which uses the ‘reasonable apprehension of bias’ test; (ii) does not make it clear that actual bias is required, undermining the principle that justice should be seen to be done; (iii) it appears to make more of a comment on the judge’s integrity than an objective test, discouraging findings of bias.
o Modification of the Gough test: two stage test: (i) court must ascertain all the circumstances; (ii) court must aske with the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility the judge was biased.
APPREHENSION OF BIAS
the concern with the test is about its perception not its function
since the ‘reasonable man’ test really asks the court to give content to what is ‘reasonable’ there may be little change in practice. However, perhaps the move is positive, since perception is the entire function of this line of cases.
APPREHENSION OF BIAS
Gillies v SS Work and Pensions [2006]:
The level of knowledge of the observer was considered in Gillies and Virdi. In Gillies, the court considered the level to be ‘facts known generally to the public’, but in the latter, some specialist knowledge was imputed — the observer would ‘seek out the full facts and an explanation from the tribunal’
C’s claim for renewal of disability living allowance was rejected by a tribunal. C argued the medical member of the tribunal had an unconscious preference for the medical reports of doctors within her own field. HL (Lord Hope): Porter applies —this observer “can be assumed to have access to all the facts that are capable of being known by members of the public generally.” Such a fair minded observer would have no reason to think the doctor would apply her medical knowledge in an impartial way.
APPREHENSION OF BIAS
Virdi v Law Society [2010]:
V (a solicitor) was barred from practicing by the Solicitors Disciplinary Tribunal. V discovered that Tribunal clerks are Law Society employees, seconded to the Tribunal, and helped draft judgments. He argued the role of the clerk created the apprehension of bias. CA: no apprehension of bias. One issue was the level of knowledge the observer had to have: “a fair-minded person would not reach a conclusion that a tribunal was biased or appeared to be so, without seeking the full facts, and an explanation put forward by the tribunal”
Elliott: argues that Porter was not a panacea. It is unclear: (i) how informed is the observer; (ii) how suspicious is the observer; (iii) how strong are the observer’s powers of reasoning.
IMPACT OF THE HUMAN RIGHTS ACT
Issues of procedural fairness now fall for consideration under Art. 6 of the ECHR as well as CL:
• Art. 6 ECHR: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…”
A major difference between Art. 6 and the CL on bias is that the CL does not require independence only impartiality, which means administrative decisions (e.g. planning permission) can be made by a government panel, rather than by the judiciary (see Alconbury).
IMPACT OF THE HUMAN RIGHTS ACT
RH: Big difference between Art. 6 and CL is that CL rules have very broad triggers —
any C with a right / interest in the decision or a legitimate expectation of procedural fairness is entitled to NJ rights, with the content of those procedural rights modified on a sliding scale based on the type of decision and the interest affected. By contrast, Art. 6 has the stricter trigger of “determination of civil rights and obligations.” However, once C brings himself within Art. 6, an objective higher, fixed standard applies—it requires a structurally independent tribunal as well as an impartial one.
The CL rules take a balancing approach (Re HK, McInnes) wheras Art. 6 takes a rights based approach, based on the intrinsic, dignitaries value of a fair hearing (as shown in AF, but not perhaps in Tariq). Art. 6 prompted the loosening of the bias test in Porter v McGill from that in Gough (real danger relaxed to real possibility, making it easier for Cs to prove bais and requiring higher standards of apparent impartiality from DMs (although bias was not found on the facts in Porter, nor a violation of Art. 6)
IMPACT OF THE HUMAN RIGHTS ACT
Millar shows that Art. 6 requires not just actual impartiality, but also the appearance of impartiality:
Millar v Procurator Fiscal [2001]
prosecution by a temporary sheriff in Scotland breached Art. 6 —hopes of a permanent employment created the impression of bias. Lord Bingham: if the DM does not appear to be impartial, it is not enough to show that the overall proceedings were fair / it made no difference to the result under Art. 6. Also noted that Art. 6 rights can be waived by “a voluntary, informed and unequivocal election.”
IMPACT OF THE HUMAN RIGHTS ACT
The Art. 6 emphasis on a structurally independent tribunal is emphasised in the following:
McGonnel v UK [2000]:
• C’s planning application was rejected by the Guernsey Royal Court Bailiff. ECtHR: decision should be set aside. The Bailiff is a member of Guernsey’s executive + legislature, so had been involved in passing the legislation under which C’s application was considered. Factors for a DM to be ‘independent’ are: (i) manner of appointment; (ii) term of office; (iii) guarantees against external pressures; (iv) whether the body presents an appearance of independence.
IMPACT OF THE HUMAN RIGHTS ACT
R (Anderson) v Home Secretary [2002]:
C was convicted of murder and sentenced to 15-years by the trial judge. The HS exercised his statutory powers to impose a 20-year sentence. HL: statute giving the HS power to set sentencing tariffs was incompatible with Art. 6. Under Art. 6 the DM must be structurally independent both from the parties in the case and the executive
Oversight by a court of ‘full jurisdiction’
Decisions made by non-independent executive bodies can be ‘remedied’ where they are subject to full review by an independent / impartial court with full jurisdiction to overturn the original decision.
R (Alconbury) [2001]:
planning permission to develop a disused airfield was rejected by the district council. The Secretary of State then used statutory powers to grant the permission. Objectors stated that in doing so he had contravened Art. 6 right to have civil rights / obligations determined by an independent / impartial tribunal. HL: although the SS was not an independent and impartial tribunal, his decisions were subject to review by an independent/impartial court with full jurisdiction.
o Lord Slynn: The test for sufficient jurisdictional control “is not a mechanical one, but dependent on all the circumstances.” It is not necessary for there to be a rehearing on appeal, rather what is required is that there “should be a sufficient review of the legality of the decisions and of the procedures followed.” Thus, CL grounds of review are sufficient. Finally, “in a democratic society it is entirely appropriate that the determination of … policy and its application … should be entrusted to an administrator … who is answerable to Parliament as regards policy aspects of his decision and to the High Court as regards the lawfulness and fairness of his decision making process.”
There was disagreement in Alconbury about what scope of JR was necessary under Art. 6 for there to be supervision by a court of ‘full jurisdiction’ –Lord Slynn was prompted to develop a broader ground of JR review for error of fact (subsequently developed in E). Lord Hoffmann did not support this, rather argued that the scope of JR could vary depending on context. This was the issue in Begum:
Oversight by a court of ‘full jurisdiction’
Begum v Tower Hamlets [2002]:
• C was offered housing as a homeless person, but refused it. Her decision was reviewed by the local authority, which found that the accommodation had been suitable. C argued that the reviewing officer was not impartial and JR would not be of ‘full jurisdiction’ as the court could not examine findings of fact. HL: JR was sufficient it is not necessary for there to be re-examination of the merits of the case
o Strasbourg has shown a degree of flexibility in applying Art. 6 to administrative decisions in order to find “just and workmanlike solutions” —this flexibility means that in such a policy-laden area, full review does not mean a reconsideration of the merits by the court.
The decision in Begum was based on a desire to avoid over-judicialisation of the administrative process, particularly broad policy decisions are involved, for which democratic accountability is desirable.
• Craig: Lord Hoffmann’s distinction between cases involving criminal law or private rights and cases involving social or regulatory issues in Alconbury is problematic in that it is difficult to draw in practice: many social or regulatory issues also involve private rights e.g. planning decisions. And it raises normative issues as to whether social or regulatory issues should be subject to lesser procedural protections than adjudication of private rights.
Oversight by a court of ‘full jurisdiction’
The HL’s conclusion in Begum was challenged in Tsfayo
—although the case can be distinguished from Begum in that Begum the issue concerned broad policy judgements, whereas Tsfayo concerned only fact:
C failed to apply to renew her benefits from her local council due to her poor English and lack of understanding of the benefits system. C applied for backdated benefits, but this was rejected by the Council Review Board. C argued that the lack of error of fact review of administrative decisions violated Art. 6. ECtHR: Art. 6 had been violated. The Board lacked structural independence (composed of Council members), and there was no policy role in the Board’s determinations — they just had to consider questions of fact to determine C’s claim (unlike Begum). No JR of error of fact meant that there was no oversight by an independent tribunal of full jurisdiction
The distinction between Begum and Tsfayo was applied in Ali
Ali v Birmingham CC [2010]:
Cs were single mothers whom the LA owed a statutory duty to house. LA made offers of accommodation, which were rejected by Cs. Cs argued they had not received the offer letters. Review was conducted internally; Cs argued this violated Art. 6. SC: held this case was not a ‘determination of civil rights’ within the meaning of Art. 6 (see below). However, even if it had been, the factual issue of whether the letters had been received was just one issue and was bound up with policy considerations.
Determination of a civil right
Art. 6 has a higher threshold for its application compared to CL rules on procedural fairness which justifies the higher standard of procedural fairness when it is engaged. However, in Begum and Tsfayo the court did not show substantive consideration to whether Art. 6 was engaged, they just assumed it was despite the social welfare context. This was challenged in Croydon
Determination of a civil right
R(A) v Croydon [2009]:
• LA determined the ages of asylum seekers to determine whether they were obliged to provide them accommodation (they would if under 16). HL: Art. 6 was not engaged.
o Lady Hale: “I would be reluctant to accept, unless driven by Strasbourg authority to do so, that Art. 6 requires the judicialisation of claims to welfare services of this kind. Every decision about the provision of welfare services has resource implications for the public authority providing the service.” Further, over judicialisation would divert resources from the provision of the services themselves. The degree of judicialisation required of an administrative decision depends on the nature of the decision. If Cs had a “civil right” at all here, this case is at the periphery of Art 6 and the LA’s decision-making process coupled with conventional judicial review (no review for error of fact) is sufficient to comply with Art 6.
o Lord Hope: the more broadly ‘civil rights’ in Art. 6 is defined, the more flexible must be the application of the requirements of Art. 6 to avoid the over judicialisation of the welfare scheme. He therefore argues that ‘welfare benefits’ ought not to be included in the definition of ‘civil rights’ for the purpose of Art. 6. He thinks for a right to come within Art. 6 it must be a private right recognised under domestic law or an individual right of which C is the holder.
Hale’s approach moves back toward the CL sliding-scale approach toward procedural fairness —if the administrative decision involves a social / welfare issue as opposed to the determination of a private law right / criminal law matter, lower standards of procedural fairness will apply under Art. 6 in the same way as CL standards of procedural fairness would be modified. Hope’s approach would remove welfare benefits from Art. 6 protection, leaving them to be determined by CL ‘sliding scale’ protection.
Lord Hope in Ali v Birmingham CC: held we should no longer (as in Begum) assume that social welfare benefits engage Art. 6, because it generates too much litigation, which wastes the resouces of public bodies —instead line should be drawn between social benefits whose substance is defined precisely by domestic law and those benefits dependent on the exercise of judgement by a relative administrative authority. “I would now be prepared to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself a holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need out to be m
What do Ali and Croydon show?
Ali and Croyden show procedural fairness protections will not be in the public interest in all cases. They are costly and can lead to judicialisation of the administrative process, putting policy decisions, which should be made by democratically accountable bodies into the hands of unelected and non-expert judges.
For an example of Art. 6 applying where a concrete civil right is engaged, see Wright (above).
A DUTY TO GIVE REASONS
A final issue within the ambit of procedural fairness / natural justice is the existence of a general duty to give reasons. At common law public bodies are not under a general duty to give reasons for their decisions. One reason for this was stated in Al Fayad —the requirement of a fair hearing is essential to ensure a fair decision is made, but a duty to give reasons merely allows C to check a fair decision has been made after the event. This is an instrumentalist approach.
The court will, however, find a duty to give reasons in some circumstances and there seems to be a perceptible trend towards an insistence toward greater openness:
A DUTY TO GIVE REASONS
ex parte Cunningham [1991]:
• The public body responsible for reviewing the decision concluded C (prison officer) had been unfairly dismissed, but gave C a very low award and no reasons. CA: natural justice required D to give reasons as part of the duty of fairness.
o McCowan LJ: factors that will support a fairness requirement to give reasons: (i) no possibility of appeal; (ii) DM carrying out a judicial function; (iii) DM is susceptible to judicial review; (iv) a decision would reasons is insufficient to achieve justice; (v) no statute requiring the court to tolerate the unfairness; (vi) giving reasons would not be harmful to public interest.
o Lord Donaldson: if the DM is subject to JR and there is an arguable case, D owes a duty to the court to give reasons, even if he is not obliged to provide reasons to C.
A DUTY TO GIVE REASONS
Doody [1994] (see above).
• Lord Mustill: no general duty to give reasons, but the duty of fairness may lead to a duty to give reasons being implied in some circumstances. The key question is whether a refusal to give reasons is fair. Here, the HS sentences murder convicts—all those sentenced in courts get reasons for the length of sentence, it isn’t fair that murder convicts should be treated differently. Cunningham factors support a duty to give reasons —HS’ decision is susceptible to JR and so reasons are required to detect the kind of error which would allow the courts to intervene.
A DUTY TO GIVE REASONS
Al Fayad [1997]:
Lord Woolf: duty to give notice of the case against C is much more important than the duty to give reasons, as the former ensures a fair decision is reached whereas the latter only allows for retrospective scrutiny. Here, the statutory ouster clause means the HS does not have to give reasons, but given the importance of the interest involved (naturalisation application) he would have found a duty.
A DUTY TO GIVE REASONS
It seems the duty will not be found unless C is directly affected by the decision:
Hasan [2008]:
• C (Palestinian whose property had been destroyed by Israeli military) challenged the SS of Trade’s decision to grant licences for the military equipment to Israel on the ground that reasons had not been given. Wilson LJ: although there is no general duty to give reasons, the category of cases in which reasons are required is not closed. Factors such as fairness, public confidence, and openness of government may militate towards finding such a duty in a particular case. In all cases where such a duty has been found, it is owed to C who is directly affected by the decision. C here has at most an indirect interest.
o Also important here that the statute provided a duty to give reasons to specified parties, showing Parliament had considered the matter.
A DUTY TO GIVE REASONS
Sedley J in HEFC suggests a model to determine when duty to give reasons will be owed:
• HEFC ex. p. Dental Surgery [1994]: grants to educational institutions were based on an assessment of their research quality of HEFC. C applied for JR of their assessment, on grounds of a lack of reasons for the assessment. Sedley J: no duty to give reasons here, but he identified two categories of case in which a duty to give reasons would arise.
o Where the interest in question is “so highly regarded by the law that fairness requires that reasons … be given as of right.” The defining feature is that the duty arises independently of the specific factors in the case, because the interest is so important. E.g,:
♣ Doody: Lord Mustill stated that fairness demanded the giving of reasons, since the tariff period was so important to life sentence prisoners.
♣ Art. 6: although Doody was pre-HRA, where Art. 6 ‘civil rights / obligations’ and ‘criminal charges’ are at stake, reasons may have to be given.
o Where no such interest is at stake, there must be a ‘trigger factor’ specific to the case in question: This tends to be when a decision appears abnormal / requires explanation. E.g.:
♣ ex p Cunningham, no reasons were given for an award of £6,500, rather than the £14,240 - £16,374 that could have been expected.
HEFC: was in this category, but the decision was not ‘abnormal’.
A DUTY TO GIVE REASONS
Content of the duty to give reasons: appears to be fairly weak:
S. Bucks. DC v Porter [2004]
(facts unimportant) Lord Brown: reasons must be “inteligible” and “adequate” —“They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal controversial issues, disclosing how any issue of law or fact was resolved.”
Should there be a general duty to give reasons?
Elliott:
• At present, there is no general duty and it is for C to show that it should be imposed—the presumption is that the public body is under no duty. No matter how many exceptions are developed, the presumption is important as it indicates that reasons are less significant than other principles of good administration (e.g. right to make representations).
• Four rationales in favour of a general duty: first three are instrumental, last is non-instrumental:
o Facilitates justified challenges and avoids pointless ones by allowing C to arrive at an informed view as to whether the decision was legitimate. By avoiding pointless challenges based on misunderstandings, it is arguable that it would not be more costly / burdensome overall, the cost is merely front-loaded.
o Increases public confidence: free/indirect scrutinising process, forcing DM to “concentrate on the right questions.’ It also encourages public co-operation with the admin. system.
o Improves quality of decisions: DMs are forced to focus on right questions / encourage a thorough approach to decision making. Limits arbitrariness.
o Respects human dignity: giving reasons is an integral part of treating a disappointed individual with the respect that his dignity as a citizen demands.
• These ratioanles are very similar to those which underpin the general duties of procedural fairness, so it is difficult to justify the general duties of procedural fairness / exclude a general duty to give reasons.
• Can be argued that a general duty to give reasons would impose an excessive burden on administrative bodies, but this is untrue —a rational, lawful, and non-arbitrary decision will be supported by reasons anyway, so the duty to communicate those reasons is not burdensome.
• Argues for a general duty to give reasons not a universal duty: in some situations (e.g. national security) the duty could be excluded and the duty could be varied in a context sensitive manner (more important the case, more detailed / cogent the reasons must be). The content of the general duty should be that enumerated in S. Bucks —adequate/intelligible reasons that allow the reader to understand how the conclusions were reached.
• Elliott argues that the penalty for breach of the duty should be setting the decision aside. Presently there is some remedial flexibility where a duty is found —e.g. in HEFC Sedely J suggested relief could either me an order to give reasons, or could be “a ground of nullity where it is required.”
o Against Elliott, one consequence of decisions being void for lack of reasons is placing additional burden on the admin. system because such orders are ‘Pyrrhic victories’ where the same decision will be taken again, this time with reasons.
Should there be a general duty to give reasons?
JUSTICE‑All Souls Committee:
• Arguments against a duty to give reasons: (i) would inhibit free discussion among DMs, if they are concerned considerations will go public; (ii) impose intolerable burden on admin. machinery; (iii) decisions will take longer; (iv) will facilitate legal challenges, taking a further step towards the judicialisation of the decision-making process; (v) won’t necessarily achieve the ends desired —DMs may (in the interest of efficiency) comply in form and not substance (i.e. giving standard reasons).
• However, they propose a the adoption of a statutory right (based on Australia): individuals are entitled to write to a DM and request reasons (so an element of self-filtering) — the committee were particularly impressed with the penetration of the Australian duty, requiring details of the material facts relied upon in addition to reasons to ensure “justice is administered according to the facts and law and not upon arbitrary of extra-legal considerations.”
o Note: this final step would guard against the form over substance risk —point (v).
• Suggest exceptions in the following areas: (i) national security; (ii) disclosure would compromise legal privilege; (iii) where information is given in confidence; (iv) would reveal trade secrets.
GENERAL ISSUES IN NATURAL JUSTICE
Differences between Art 6 and common law procedural fairness requirements?
- Art 6 has a higher threshold for application, “determination of a civil right”, compared to CL rules triggered whenever C has a right, interest or legitimate interest in administrative decision (Craig). The higher threshold for the application of Art 6 based on considerations of administrative efficiency, effective use of public resources, the need to avoid over-judicialisation administrative process and need for policy decisions to be taken by an elected politically accountable body was indicated in R (A) v Croyden and set in Ali.
- Art 6 has fixed rights to an independent and impartial tribunal which apply in all cases and do not vary based on the content of the decision —CL has a sliding scale of procedural justice rights depending on the context as in McInnes. But this distinction is undermined by the approach to Art 6 standards in Begum and Croyden —lower standards of JR required because the decision involved social policy / welfare payments, dependent on value judgements by DMs.
- Art 6 has a fixed right to disclosure of the gist of the case against the individual which is sufficient to allow him to instruct a special advocate as in A v UK and AF. But this fixed right was undermined by the decision in Tariq not to apply it to cases except where the individual’s liberty is threatened, and by the decision in Bank Mellat where Lord Neuberger’s reasoning moved away from the rights-based approach in AF in favour of pragmatism.
- Art 6 focuses on the non-instrumental dignitarian value of procedural fairness as a human right, rights-based approach, whereas CL focuses more on the non-instrumental grounds for procedural rights. But this is against undermined by the decisions in Tariq and Bank Mellat, abandoned that Art 6 rights-based approach.
- Art 6 imposes a requirement that the decision-maker be structurally independent of both the parties in the case and the executive, as in McGonnell and Kingsley, whereas the CL only expressly requires impartiality. But this is undermined by the fact that the original administrative decision-maker does not himself satisfy the requirements of impartiality and independence does not violate Art 6 if his decision is subject to review by a court, and such judicial review may not have to include review on the merits or fact-finding by the decision-maker, see Alconbury and Begum but also Tsfayo.
- Art 6 prompted the courts to change the test for bias from “real danger” test in Gough to “real possibility” test in Porter.
GENERAL ISSUES IN NATURAL JUSTICE
How do the rationales for procedural fairness requirements affect their content?
- Key difference in national security cases. Dignitarian human rights approach underpins A v UK and AF, everyone has a right to minimum level of disclosure as part of his dignity as a human person, more difficult to subject a human rights based rationale to pragmatic national security arguments, whereas instrumental arguments focusing on accuracy can be more easily subjected to overriding considerations.
- Accuracy argument is largely speculative, unless C has crucial information which the decision-maker cannot know without hearing representations from C, it will be very difficult for C to show that following the procedural fairness requirements would actually have led to a different result in a particular case, so easier for such speculative arguments to be subjected to competing interests e.g. administrative efficiency. (But see Miller v Procurator Fiscal and AF below.)
- Instrumental accuracy based arguments generally more susceptible to being subjected to competing interests e.g. efficient use of resources as in Begum and Ali, more difficult to justify subjecting to requirements imposed to protect human dignity or the rule of law to competing considerations, these rationales militate in favour of a fixed immutable core of rights which apply in all cases as in AF. But even these non-instrumental arguments can still be outweighed by constitutional arguments e.g. argument that policy decisions should be made by democratic and politically accountable bodies as in Begum and Ali.
- Human dignity rationale can be said to militate in favour of a duty to provide an oral hearing in all cases. Except in cases where assessing credibility is key, oral hearing will not improve accuracy, but giving someone a chance personally to participate in the decision-making process of a decision which is of significance to her life is key to treating her with dignity as an individual, oral hearing is an intuitive requirement of justice as recognised in Osbourne.
- But some of the distinctions are undermined in that accuracy is a theoretical requirement. Cases e.g. Miller v Procurator Fiscal and AF showed that fact that failure to follow procedural duties makes no difference to result does not mean that decision is valid. Accuracy argument is theoretical and general, court cannot know whether requirement to follow procedure requirements will actually avert inaccuracy in a particular case so must be assumed that accuracy argument militates in favour of procedural duties in all cases, harder to justify departure from the general theoretical argument that procedural duties will generally and in theory enhance the accuracy of decisions.
- The current rules on procedural fairness show a triumph for instrumental accuracy-based considerations which can be subjected to competing issues e.g. national security, administrative efficiency, rather than a human rights/dignity considerations leading to a more immutable approach that applies regardless of the subject matter of the decision: Tariq, Begum, Croyden, Ali.
GENERAL ISSUES IN NATURAL JUSTICE
Should procedural fairness vary depending on circumstances of the case?
- Human rights/dignity rationale for procedural fairness, embodied in Art 6, suggests no, manifested in minimum disclosure rule in A v UK and AF, there should be at least an immutable core of process rights ensured in all cases based on the inviolable respect which each person deserves as an individual.
- But there are constitutional and public interest arguments showing that procedural fairness must vary from case to case. Constitutional arguments: many administrative decisions involve evaluative or value judgments on political policy issues e.g. welfare benefits, housing, planning, particularly in cases involving decisions as to how scarce resources should be shared out, e.g. Begum, Croyden, Ali. Undesirable to apply strict requirements of an independent and impartial tribunal as under Art 6 in these cases in same way as that requirement is applied in criminal cases or private law rights cases; judicialisation of such administrative decisions must be avoided, institutionally and constitutionally inappropriate for courts to be making these decisions, such decisions must be made by an expert body and a body which is elected and democratically accountable, not desirable for such a body to be independent from the executive.
- Public interest: process rights are expensive as pointed out in Osbourne and Ali particularly oral hearing and independent tribunal. In cases where liberty etc is at stake e.g Osbourne these costs are a price worth paying but in other areas cost of such process rights not in public interest overall e.g. social and welfare payments, more money that must be spent deciding cases = less money to be spent on payments themselves.
- Variable standards of procedural fairness are essential to reflect the fact that some decisions are more important for individuals than others, variable procedural fairness necessary to show due respect of dignity of claimants in most serious deprivation of liberty cases, need to know they are getting special protection to reflect the importance of the decision in their lives, contrast facts of Osbourne with facts of Hasan (reasons case).
GENERAL ISSUES IN NATURAL JUSTICE
Is the case law on natural justice coherent?
- Can be argued that case law not coherent because no immutable core of process rights applicable in all cases, conflict between AF and Tariq, conflict between Begum and Tsfayo, cases on social and welfare benefits outside Art 6: Croyden and Ali.
- But such variable intensity application natural justice rights is coherent, validly reflects key principle that more serious cases require more procedural protection (AF v Tariq) and that the nature of the decision will affect the degree of judicialisation through natural justice rights that is appropriate e.g. decisions as to sentencing and deprivation of liberty Osbourne, Anderson inherently judicial whereas cases involving policy issues and value judgments require expertise and democratic accountability rather than independence as in Croyden and Ali.
- But one key incoherence is lack of general duty to provide reasons subject to some variation based on circumstances of the case as suggested by Elliott: four rationales for general duty to give reasons very similar to rationales for procedural fairness duties, no reason to exclude duty to give reasons. If public body makes decision properly it will have reasons anyway, not a great administrative burden to communicate them, exclusion of general duty of give reasons in Cunningham, Doody and Hasan incoherent.
GENERAL ISSUES IN NATURAL JUSTICE
Is it biased for a policy maker to make decisions under that policy?
- Yes under Art 6, violates independence. Can also be seen as common law bias analogous to Pinochet, Amnesty International and Lord Hoffmann had a non-pecuniary personal interest in furthering a cause i.e. getting Pinochet deported. Similarly, if a planning authority makes policy decision reduce number of commercial premises in a particular area and increase number of homes, it has an interest in this as a cause, will refuse more commercial applications and approve more residential applications.
- But this partiality not necessarily problematic in areas where political matters are at stake, particularly making use of scarce resources. Not acceptable in sentencing cases e.g. Anderson, these as highly individualised decisions, should be based purely on the circumstances of the individual not broader policy or political considerations, no issues of competing demands or scarce resources to justify more political policy-based decision-making. Contrast to political policy decisions on allocation of scarce housing resources in Begum and Ali. In these cases, a policy must be adopted and followed as a matter of consistency to ensure that difficult decisions are made in a consistent way such that everyone is treated equally and to bring some predictability into decisions. Judges deciding such cases purely on the merits of each individual case, e.g. each individual’s suitability for housing would lead to inconsistency and lack of predictability.
- As long as policy remains a policy and does not become mechanistic, policy makers making decisions under their policy is not bias and will not harm good administration, helps to prevent arbitrary and irrational decisions as long as the policy itself is not arbitrary or irrational, and this can be dealt with through political accountability and Wednesbury review. This last point means it is desirable for policy makers to make decisions under the policy: ensures that political policy decisions are made by a democratically elected body that is accountable for those decisions.
Discussion/definition of natural justice in GCHQ
Fraser in GCHQ defines natural justice as the ‘obligation to act fairly’;
Diplock in GCHQ:
the head ‘procedural impropriety’ is used rather than ‘natural justice or a failure to act with procedural fairness towards the person who will be affected by the decision.’ because it also covers failure by the administrative tribunal to observe procedural rules that are laid down by legislative instrument, even where there is no denial of natural justice
Roskill in GCHQ:
Third head is where body has acted contrary to ‘principles of justice’ and accepts that the phrase has ‘no doubt hollowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to find a permanent resting-place and be better replaced by speaking of a duty to act fairly.’
Qualifies this by saying that the court no scope to say whether act is ‘fair’ or not and ‘only concerned with the manner in which those decisions have been taken.’
COLLECTION
Why is procedural fairness used instead of natural justice?
terminology of ‘fairness’ and ‘duty to act fairly’ (lord Parker Re HK) were increasingly used post Ridge v Baldwin
Therefore, seems that natural justice has been subsumed into the rubric of procedural fairness (see GCHQ).
Both have elements of normative justification, but the application of procedural fairness is broader in practice
COLLECTION
Closed Material Procedures -argument
CMPs significantly violate the notions of natural justice and procedural fairness.
Yet, the SC in Bank Melat held that it had the power to hold a CMP.
The pragmatic approach led by Lord Neuberger was preferred to a principled approach of the dissenting judge Lord Kerr, lord Reed and Lord Hope. As a result, a fundamental common law right was breached, the adversarial nature of the UK’s legal system was undermined and the protection afforded to Ds was lowered to satisfy the minimum standard set by Strasbourg
COLLECTION
The current law of CMPS
The use of CMPs was significantly enhanced by the Justice and Security Act 2013, which introduced the procedure to civil litigation,
This procedure allows the court to consider material behind closed doors, and without the other party having to know the evidence.
A special advocate represents the interests of the party but the evidence cannot be shared. The justification is that publication of the evidence would damage national security
Following the ECtHR case A vUK, and the HL decision in AF (No 3), Art 6 may be satisfied with ‘minimum disclosure’. Therefore, it is sufficient for the party to know the general nature of the evidence, where fundamental rights are at stake. In non A-type disclosure cases (such as …) the evidence provided may be even less and no details may be disclosed.
The Supreme Court in Bank Mellat reinforced the contextualist approach (which is…) to answering questions about fundamental fairness. This approach, however, overlook the fundamental status of the right to hear the case brought against you.
COLLECTION
Do CMPs violate NJ and PF?
In the premise of the Green Paper for the Justice and Security Act, natural justice is defined as ‘the right to hear the case brought against you. What this means will vary according to the circumstances.’
Arguably, this lends to much flexibility to what is otherwise deeply rooted principle in common law. lord Dyson, giving the leading speech in Al-Rawi viewed CMPs as controversial because they are an invasion into fundamental common law [viz open justice and natural justice
The departure from the common law right is partly due to the ECtHR ‘s decision in A v UK, whereby the courts feel reassured to allow CMPs as they do not breach the Convention. This is misguided for two reasons (NB can the SC go further than the convention - see Osborn)
(1) first, confrontation and cross-examination are of central importance to the adverserial system of the UK common law. It is for this reason that hearsay evidence is not admissible. Furthermore, Lord Kerr adds that evidence which is ‘immune from challenge can possibly mislead’. Denying one party from hearing evidence therefore seems hardly judicial according to the UK’s adversarial system, contrasting dramatically to the inquisitorial model of the civil law.
(2) the protection afforded by Strasbourg to Ds of Cs is a minimum. MSs are free to develop greater protections . The SC did exactly that in Al-Rawi. Therefore, the judgment in Bank Mellat reflects an undesirable lowering of the procedural safeguards
COLLECTION
The view of the lead judgment in Bank Mellat
On the one hand, the majority of the SC didnot view the case as departing from Al-Rawi. There was a statutory basis for holding the CMP.
Section 40(5) of the Constitutional Reform Act provides that the courts may pursue proceedings to ensure that ‘justice is done’. The main argument in Bank Mellat was that justice could not be served of the appellate courts could not review sensitive material in CMPs.
This view is echoed in the Green Paper of the Justice and Security Act in which Ken Clarke argues that the judicial system was incapable of overseeing sensitive matters. The expansion of CMPs into civil matters would increase ‘executive accountability’ and ensure a ‘safer Britain, a fairer Britain’
This descriptively attractive. it overlooks two underpinning reasons for the existence of the common law right.
First, it ignores the human dignity of the person subject to the proceedings. As Lord Hoffman noted in AF, it is important to prevent the feeling of sense of injustice where a defendant does not know the evidence bought against them.
Secondly, the court in Anufrieva held that the rule of law must be consistently applied and that parties should know the material and laws they are subject to. Therefore, respect for human dignity and the ‘rule of law’ ensure a ‘fairer Britian’.
COLLECTION
Conclusion
The ruling in the SC suggests that abrogations from common law rights may be established when there is a statutory implication. CMPs are breaches of common law and should be viewed as skin to ouster clauses, requiring only the clearest and most explicit words. Ultimately, the courts cannot undermine the sovereignty of Parliament. however, in the absence of the most clear and explicit words, the courts should strike the attempts to undermine procedural safeguards down. This merely reflects the principle of legality as Lord Hoffman put it in Simms, that Parliament ‘face squarely to the political costs’. Fundamental rights cannot be overruled by ambiguous words.
“From Natural Justice to Procedural Fairness. Discuss.”
Introduction
The distinction between natural justice and procedural fairness is a semantic one, depending on whether the case is concerned with a judicial function, or an administrative one; there is no difference in the substance of the doctrines and the two can be used interchangeably and can both me summarised through the maxims audi alteram partem and nemo iudex in sua causa. However, although it has failed to do so up to now, English law ought to move from natural justice to procedural fairness by incorporating a general duty to give reasons, in addition to the requirements of natural justice, because such a duty conforms with and is a logical extension of the underlying principles of procedural fairness - improving the quality and legitimacy of decision-making. Only when it does so can one argue that English law has truly moved from natural justice to procedural fairness, even if it has abandoned the previously narrow definition of natural justice with regards to judicial and quasi-judicial bodies
“From Natural Justice to Procedural Fairness. Discuss.”
Distinguishing Natural Justice From Procedural Fairness in the Modern Law
Historically, natural justice was presumed to be a doctrine which had application only to cases concerning a judicial or quasi-judicial doctrine. For example, Lord Hewart CJ held in R v Legislative Committee of the Church Assembly, Ex p. Haynes-Smith that “these writs do not issue except to bodies which act or are under the duty to act in a judicial capacity.” However, this notion was rejected outright by Lord Reid in Ridge v Baldwin. Instead, the intensity of scrutiny is defined by the nature of the public body’s activity and can be divided into three cases of decreasing intensity: forfeitures, legitimate expectations, and applications.
A forfeiture case involves “a decision which takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked.” As the most serious cases, then the interested party is entitled to all the salient features of natural justice: an unbiased tribunal, notice of the charges against him, and a right to be heard in answer. By contrast, application cases are concerned with the suitability of the applicant to receive a right or position. Natural justice will not be necessary in such cases, because the applicant will be no worse off if he is rejected than he was before making the application, and so normally the decision-maker will not be held to the standards of natural justice. Finally, an intermediate category exists where the applicant can reasonably expect to receive something on the basis of past events, such as to have a licence renewed.
One might argue that this provides a handy distinction between natural justice and procedural fairness: natural justice as a technical term can be reserved for forfeiture cases where all of its principles are applicable, whilst procedural fairness is a weakened version of natural justice, applicable to a wider range of cases and to varying degrees of scrutiny, according to the circumstances.
Megarry VC rejected this substantial distinction between natural justice and procedural fairness, instead favouring a semantic one, where the terms could be used interchangeably. He said that ““natural justice” is a flexible term which imposes different requirements in different cases”, covering judicial, quasi-judicial and administrative decisions. However, the more administrative the issue, the more appropriate it is to speak of ‘fairness’, whilst the more judicial the function, the more appropriate to keep the term ‘natural justice. In this case, one cannot say English law has moved from natural justice to procedural fairness, because that is no movement at all; natural justice and procedural fairness are exactly the same thing. Use of the term ‘natural justice’ should therefore be abandoned in modern usage.
“From Natural Justice to Procedural Fairness. Discuss.”
Expanding Procedural Fairness
It can be argued that procedural fairness ought to have a meaning distinct from natural justice. A purposive interpretation of modern procedural fairness yields a wider remit than the traditional maxims of natural justice alone. One can contrast the purpose of natural justice in the old sense (application of its maxims to judicial doctrines), with modern justifications for procedural fairness. ‘Natural justice’ in the historical sense served as a minimum standard of adjudication, imposed by the High Court in its supervisory capacity. Although it has served well as a control on administration, this was never the original purpose of the doctrine. In modern administrative law, fair procedure serves two purposes. First, it improves the quality of decision-making, by ensuring the public body has access to a full account of the facts and protects its decision from the influence of bias. Secondly, it supports public confidence in administrative decision-making by consoling an individual that a decision which was not in his favour was at least decided on the merits of the case, rather than a fault in the procedure taken.
Most notably lacking from procedural fairness is a general duty to give reasons, which is currently not recognised in English law. Despite the refusal of the Court of Appeal to impose such a duty, there are strong reasons for doing so; indeed, these reasons are almost identical to the reasons proposed in favour of procedural fairness. Elliott has argued that there are four reasons in favour of the imposition of a general duty. These reasons conform to one of the two purposes of procedural fairness. A duty to give reasons would improve the quality of decisions made by imposing discipline on decision-makers, ensuring that they take a thorough approach and consider the appropriate questions, and because it would enable interested parties to better gauge their chances of appealing decisions, thereby minimising frivolous litigation and freeing up more resources for the primary function of the decision-maker. Giving reasons would also demonstrate that public bodies are rational entities, creating confidence in their decisions, and, finally, it dignifies a losing party; “giving reasons may be regarded as an integral part of treating a disappointed applicant with the respect which his dignity as a citizen demands.”
“From Natural Justice to Procedural Fairness. Discuss.”
worth considering why the Court of Appeal rejected imposing a general duty to give reasons, given the apparent merits of such a duty.
Sir Anthony May gave six reasons for rejecting a common law duty to give reasons. However, it will be demonstrated that none of these reasons are satisfactory in contrast to the benefits of a general duty to give reasons.
1. The legislation relevant to the case gave provisions for the giving of reasons to unsuccessful applicants, a mandatory annual report and a power for proportionate disclosure of evidence, suggesting that Parliament did not intend for there to be a general common law duty in addition to these statutory provisions.
The presence of a statutory scheme should not implicitly exclude principles of procedural fairness. If one accepts that the underlying justifications for a duty to give reasons is the same, then it follows that such a duty should not be excluded by implication either. Although Parliament may modify a common law duty, this does not exclude its application altogether.
2. In addition to this, the public body voluntarily published additional reports to increase transparency, so there was no need to impose a common law duty, with which the body was already complying.
Just because a public body is currently complying with the content of a duty does not mean that the common law should not recognise such a duty. Indeed, the reason such reports are produced is because it is good administration to do so. The common law, by imposing a duty to give reasons, would be facilitating good administration.
3. The information is sensitive and unguarded publication could be harmful to the national interests.
Such a criticism of a general duty to give reasons presumes that such a duty would be one without exceptions. It is not argued, nor was it argued in Hasan, that a duty to give reasons would bind every decision-maker equally. Like procedural fairness and other doctrines in administrative law, the intensity of its application would be factually sensitive. In cases involving national security, it would be very sensible to allow an exception. An exception, however, does not disprove a rule and a marginal case involving national security concerns does not undermine the general reasoning above that a duty to give reasons should be incorporated into procedural fairness.
4. The Freedom of Information Act 2000 establishes a scheme for the release of information, and the common law should not go further.
This is perhaps the strongest reason given by the Court of Appeal. However, a duty to give reasons would not undermine the system established by the Freedom of Information Act 2000, but merely avoid the need for an applicant to file a request. The statute provides for a number of exceptions to the disclosure of information, such as the disclosure of personal information or evidence given in confidence. Sir Anthony May notes that the statute would not abrogate a duty to give reasons were such a duty already recognised by common law; therefore, this reason on its own ought not to justify English law’s refusal to recognise such a duty - it amounts to little more than arguing that it should not be recognised because it is not recognised at present.
5. The formulation of a sufficiently confined and principled common law duty cannot be established.
This criticism may be true to the extent that it a duty to give reasons cannot easily be confined, but the argument that it is not principled is undermined by the notion that its justifications are identical to the principles behind procedural fairness. If this duty is not sufficiently principled, then it might be argued that neither are other such doctrines, but it cannot be doubted that procedural fairness is a positive aspect of administrative law. It is the nature of administrative law to be highly fact sensitive, and this is a great strength, allowing it to respond to the wide variety of decisions made by public bodies. The flexibility of these doctrines, whilst staying true to their purpose to improve the quality of decisions, is one of the factors that has allowed them to develop within the common law.
(NB: If you were thinking across lines of case law here, you could use Kennedy v Charity Cmn (which establishes that “accountability” and “transparency” are general principles of the common law to back up your point here.)
- The claimant did not have more than a nominal interest in proceedings, having accepted that the government action in question (licensing arms exports to Israel) was legal.
This criticism is not aimed at the duty itself, but a practical problem in the case. The claimant had accepted that the government action was legal, and so his interest in the case was only nominal. It is reasonable that the Court of Appeal would not want to implement such a change in the law when it would not have an impact of the facts of the case before them. However, this practical point does not offer a reason for resisting a duty to give reasons more generally.
“From Natural Justice to Procedural Fairness. Discuss.”
Conclusion
In light of the failure of the reasoning in Hasan to undermine the reasons offered by Elliot for the adoption of a general duty to give reasons, such a duty ought to be incorporated within the concept of procedural fairness. On this understanding of procedural fairness, then English ought to progress from natural law, as a narrow doctrine of only two maxims to a wider, more comprehensive doctrine of procedural fairness.
“Unfairness” in Administrative Law: R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25
Facts
differential treatment of parties investigated for price-fixing in the tobacco market. The claimants settled with the Authority in 2008. Another party also settled, but received an “oral assurance unwisely given” from the Authority that in the event of a successful appeal (by one of the other parties), the settlement would be set aside (at para. 48, per Lord Sumption). As it happened, there was a successful appeal, which was excellent news for the other settling party.
Understandably, the claimants were not best pleased, having given up their chance to appeal (they tried to appeal but were ruled out of time) and seeing another similarly situated party exit the affair with a clean slate. In 2012, they asked the Authority to give them the benefit of the assurance foolishly provided to the other settling party, the effect of which would be to withdraw the decision against the claimants and to refund the penalties paid. But the Authority refused.
On judicial review the claimants argued that the Authority’s approach violated the principle of equal treatment and was substantively unfair.
“Unfairness” in Administrative Law: R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25
Lord Carnwath re equal treatment
Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in [R (O’Brien) v Independent Assessor [2007] 2 AC 312, para 30], is a “generally desirable” objective, but not an absolute rule (at para. 24).
“Unfairness” in Administrative Law: R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25
Lord Carnwath re fairness
“Fairness, like equal treatment, can readily be seen as a fundamental principle of democratic society; but not necessarily one directly translatable into a justiciable rule of law” (at para. 31). He took the opportunity to trawl through the leading cases referencing “fairness” as a ground of review in order “to show how misleading it can be to take out of context a single expression, such as “conspicuous unfairness”, and attempt to elevate it into a free-standing principle of law” (at para. 40). In all of the cases, there was some other ground of review: “unfairness”, “conspicuous unfairness” or “abuse of power” were simply descriptive labels applied after the fact (at para. 37). In summary:
In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand – or, in Lord Dyson’s words at para 53, “whether there has been unfairness on the part of the authority having regard to all the circumstances” – is not a distinct legal criterion. Nor is it made so by the addition of terms such as “conspicuous” or “abuse of power”. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged (at para. 41).
“Unfairness” in Administrative Law: R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25
Lord Briggs and Sumption on why fairness should not prevail in this case
he Authority was faced with three “unpalatable” alternatives (at para. 60, per Lord Briggs): going back on its promise to the other settling party (which would have provoked further litigation); extending the promise to all parties (which would have been very costly); or refusing to replicate the error. As Lord Sumption put it: “To say that a decision-maker must treat persons equally unless there is a reason for treating them differently begs the question what counts as a valid reason for treating them differently”
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Lord Reed
not clear whether Lord Wilson’s more expansive view of consultation as part of the duty of fairness at common law or Lord Reed’s emphasis on the particular statutory context will prevail in future cases.
There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139; [2008] ACD 20, paras 43-47. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Lord Wilson
ord Wilson did not limit his reasoning to the statutory context. He acknowledged that a statute could trigger the duty to consult but suggested that “the duty cast by the common law upon a public authority to act fairly” could also do so; in either case, the “common law duty of procedural fairness will inform the manner in which the consultation should be conducted”
hree criteria provide a “prescription for fairness”:
First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals (at para. 25, quoting lower courts)
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Two further elements emerge from the case law, in Lord Wilson’s view.
“First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting” (at para. 26). Second, “the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Why might one quibble with the more expansive approach?
on the basis that it gives reviewing courts a great deal of scope to determine what “fairness” requires in a given context. Pity the local government lawyers who have to design a consultation process in the knowledge that a court may conclude after the fact that a particular process was not “fair” in judicial eyes.
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Comparison with Canadian approach in Bradshaw v. Victoria (City), 2015
Groberman J.A. recognizes municipalities have “broad discretion in determining the nature and extent of consultation” (at para. 41). A deferential standard applies (at para. 42). Here, it was satisfied:
There were some changes to the OCP late in the consultation process, including the expansion of development permit requirements. It is true, as the appellant alleges, that there was less opportunity for consultation on the amended provisions than on the OCP as a whole. That, however, is a function of the consultation process itself; where a local government engages in genuine consultation with a view to improving proposed legislation, that consultation is likely to result in some changes to the legislation as the process nears its conclusion. At some point, the consultation must come to an end, and a local government must be able to adopt a bylaw. In the case before us, there were extensive opportunities to comment on the OCP as it was developed, and right up to the moment of its adoption…(at paras. 43-44).
Fairness and the Common Law Duty to Consult
Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014]
Daly’s view
This certainly leaves more scope for decision-makers, which is as it should be (in my view) given the context-sensitive nature of consultation.
The Case for Deference on Questions of Procedural Fairness
“Canada’s Bi-Polar Administrative Law: Time For Fusion“,
Argument
Canada’s approach
argues that the courts should defer to administrative decision-makers on questions of procedural fairness
On matters of substance – interpretations of law and exercises of discretion –
Canadian courts preach deference. For more than thirty years, they have refused to
substitute their judgments for those of administrative decision-makers even on legal questions, intervening only on the ground of unreasonableness.
Yet on matters of
procedure, courts have no qualms about stepping into the shoes of administrative
decision-makers.
The Case for Deference on Questions of Procedural Fairness
“Canada’s Bi-Polar Administrative Law: Time For Fusion“,
Why has there been such a marked divergence of approach in substantive review
and procedural review?
An explanation may be drawn from an appreciation of the values
that underlie the common law
In procedural review, a substantive conception of the rule of law, with its concern for the
dignity of the individual,164 has been dominant. Recall L’Heureux-Dubé J.’s concern with
the effect of the decision on the individual concerned: “The more important the decision
is to the lives of those affected and the greater its impact on that person or those persons,
the more stringent the procedural protections that will be mandated”.165 The greater the
effect, the greater the dignity interest served by according robust procedural rights. To the
extent that clear expressions of legislative intent can effectively oust procedural
protections, democracy too plays a role. Indeed, the requirement of a ‘clear statement’
that the legislature wishes to oust procedural protections itself reinforces the value of democracy, for the lawmaking body must “squarely confront what it is doing and accept
the political cost” (Hoffmann in ex p Simms)
The Case for Deference on Questions of Procedural Fairness
“Canada’s Bi-Polar Administrative Law: Time For Fusion“,
Why might we defer more in procedural matters?
Presumptive deference to administrative
decision-makers’ interpretations of their home statutes is based on the specialized
expertise of those decision-makers (a matter of good administration) and ultimately on
legislative intent (a matter of democracy). Deference on questions of procedural fairness
is supported by considerations of democracy – because the legislature can be seen to have
delegated the interpretation of the relevant provision or the management of the particular
regulatory domain to the administrative decision-maker – and good administration –
because an expert administrative decision-maker is more likely than a reviewing court to
be familiar with what procedural rights are required to effectively achieve its statutory
mandate.
But good administration and democracy are not the only relevant values. The
requirements of “justification, transparency and intelligibility” and of decisions falling
within a “range” of acceptable outcomes ensure respect for the rule of law by allowing
reviewing courts to sanction irrational, illogical, arbitrary, inequitable or disproportionate
decisions. Individual dignity and autonomy are thereby respected.
Canada’s framework for substantive review is respectful of the rule of law while
alive to the concerns of good administration and democracy. Fusing it with the
framework for procedural review would safeguard the “fundamental legal order of our
country”168 and greatly simplify the task of judicial review of administrative action.
The Case for Deference on Questions of Procedural Fairness
why should courts defer to admin. decision-makers?
- legislative intent
- legislative intent
The composition and institutional structure of the agencies, together with the expertise and the wide range of procedural tools available to them, apparently persuaded the courts that these bodies had indeed been given the primary statutory responsibility for implementing and elaborating the legislative mandate within their area of regulation.
Other practical justifications for deference are linked to legislative intent, because they are the reasons that decision-making authority was granted to administrative decision-makers in the first place;[6] the “natural inference” is that they influenced the legislative decision to create and empower the administrative decision-maker in question.[7] Closer to the parties and more sensitive to the dynamics of the regulatory environment than a reviewing court, the administrative decision-maker should benefit from deference in its resolution of procedural issues.
The Case for Deference on Questions of Procedural Fairness
why should courts defer to admin. decision-makers?
- An administrative decision-maker “knows the circumstances in particular proceedings before it
An administrative decision-maker “knows the circumstances in particular proceedings before it, has “expertise in the dynamics” of a particular regulatory domain and “has policy appreciation”.
The Case for Deference on Questions of Procedural Fairness
why should courts defer to admin. decision-makers?
- flexibility
Resolving the competing interests of meaningful participation and effective decision-making may also be a delicate task:
“Flexibility is necessary to ensure that individuals can participate in a meaningful way in the administrative process and that public bodies are not subject to procedural obligations that would prejudice the public interest in effective and efficient public decision-making”.[4] It may, moreover, turn on the appreciation of facts and the elaboration of the decision-maker’s policy agenda, matters traditionally calling for deference. As the Court has itself recognized: “The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the [decision-maker’s] constituencies”.[5]
Administrative Law Values IV: Procedural Fairness
- how do the rules vary depending on context + authority?
- how does he define procedural fairness/natural justice?
Russell v. Duke of Norfolk, [1949]: long been understood that the rules of procedural fairness vary according to context.
NB After the fashion of modern courts and commentators, I use the terms procedural fairness, procedural rights and duty of fairness interchangeably, to replace the older label “natural justice”.
Administrative Law Values IV: Procedural Fairness
Contrast between Canadian and US approach
Cadian case on procedural fairness. In her majority reasons, L’Heureux-Dubé J. envisaged a broad scope for procedural fairness, conceiving of it as “a general right”, which would arise “autonomous of the operation of any statute”.[4] Here, the rule of law, with its concern for the dignity of the individual, is dominant.
Contrast Mathews v. Eldridge, in which the Supreme Court of the United States laid down a three-part balancing test for determining whether procedural rights should be accorded to individuals: first, consider the importance of the decision to the individual; second, consider the utility of the requested procedure in reducing error; and third, consider the government’s interest in minimizing the costs of administrative decision-making.[5] This balancing test is far removed from the individual-focused framework developed by the Supreme Court of Canada in Knight. Dignity interests infuse only the first part of the Mathews balancing test. Indeed, insofar as they are present, they are tied to the second factor – the practical effectiveness of granting the requested procedural right, which has as its source the principles of good administration. And of course, the third factor – efficiency – also emerges from the value of good administration.
Administrative Law Values IV: Procedural Fairness
As to the content of procedural fairness,
“the so-called rules of natural justice are not engraved on tablets of stone” (Lloyd v McMahon) per Lord Bridge)
Context, when it comes to procedural fairness, is everything: “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 in question” (ibid)
To translate “character”, “kind” and “framework” into the language of values: good administration, the rule of law (in terms of the relative impact on individuals of the decision) and democracy provide the context which allow reviewing courts to determine whether or not to impose procedural safeguards.
Administrative Law Values IV: Procedural Fairness
rule of law concerns
procedural fairness cases invariably involve a person (occasionally a legal person) who contends that his or her rights have been infringed, that they have been “subjected to pains or penalties”.[16] And the more severe the pains and penalties, the greater the individual’s claim to procedural protection: “The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated”.
Administrative Law Values IV: Procedural Fairness
dignity
Recognition that “[i]n the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts” has underpinned the expansion of procedural protections (ex p dental surgery; see Ridge v Baldwin)
Administrative Law Values IV: Procedural Fairness
democracy
This concern for individual dignity and autonomy is underpinned by the substantive aspect of the value of democracy, which privileges participation by individuals when state action relevant to them is proposed.
To the extent that clear expressions of legislative intent can effectively oust procedural protections, the majoritarian aspect of democracy too plays a role. Indeed, the requirement of a ‘clear statement’ that the legislature wishes to oust procedural protections itself reinforces the value of democracy, for the lawmaking body must “squarely confront what it is doing and accept the political cost”. R. v. Secretary of State for the Home Department, ex parte Simms, [2000] 2 A.C. 115, at 131, per Lord Hoffman (H.L.).
Administrative Law Values IV: Procedural Fairness
good administration
Good administration often supports these rule-of-law based claims, as when participatory rights would reduce the risk of error.
A good example is May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at paras. 117-118, where a majority of the Court made reference to the need to allow individuals a means of “understanding” a decision-making process so that they could make a “meaningful response” to the case against them, and “rebut the evidence relied upon”. See also New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 72: “If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests”.
Administrative Law Values IV: Procedural Fairness
when might individual procedural rights be tempered?
may be tempered by considerations of good administration: “If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply” (Pearlberg)
Indeed, “[a]t some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost”. (Matthews v Eldridge)
Administrative Law Values IV: Procedural Fairness
good example of the creative tension between the rule of law and good administration
Bushell v. Secretary of State for the Environment.[23] A local inquiry was held into the routing of a motorway. One of the elements relied on by the inspector in coming to his conclusions was a central government report on traffic volumes, a report based on various assumptions and statistical models. Lord Diplock accepted that fairness required that those opposed to the motorway project have a right to “be given sufficient information…to enable them to challenge the accuracy of any facts and the validity of any arguments”, that supporters “should also be heard” and that “those adversely affected by the modification should be given an opportunity of stating their reasons for objecting to it”. Yet these rights had to give way in some circumstances to good administration:
Proceedings at a local inquiry at which many parties wish to make representations without incurring the expense of legal representation, and cannot attend the inquiry throughout its length ought to be as informal as is consistent with achieving those objectives. To “over-judicialise” the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.
As Lord Lane put it, the result of permitting cross-examination would have been “an even lengthier hearing without any appreciable advantage”. Moreover, an attack on the policy of central government would not be appropriate. A local inquiry was no place to impugn the “reliability and statistical validity” of a model applied nationwide. Good administration pre-dominated again.
Administrative Law Values IV: Procedural Fairness
good example of the creative tension between the rule of law and good administration
The right to reasons is another site of creative tension, one which, moreover, demonstrates the dynamic potential of values. Concern for individual dignity and autonomy suggests that a right to reasons ought to be recognized: “Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given”, “thereby contributing to a more willing acceptance of the decision” such that “where the decision has important significance for the individual”, reviewing courts ought to impose a duty on administrative decision-makers to give reasons: “It would be unfair for a person subject to a decision…so critical to their future not to be told why the result was reached”.
Moreover, the provision of reasons would mean that the exercise of government power “is less likely to be, or to appear to be arbitrary, if the decision maker formulates and provides reasons for his decision”.
Administrative Law Values IV: Procedural Fairness
Good administration pulls in two ways. On the one hand, militating against a right to reasons are concerns of efficiency:
These include the possibility that an additional burden will be cast on administrative officers and that increased cost and delay may be entailed and the further possibility that…[a right to reasons] might in some cases induce a lack of candour on the part of the administrative officers concerned.[35]
Administrative Law Values IV: Procedural Fairness
Good administration pulls in two ways. On the other hand, reasons may lead to more accurate decision-making:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review
Administrative Law Values IV: Procedural Fairness
Separation of powers
Separation-of-powers concerns may also be relevant. Accordingly, the Irish
Supreme Court recognised a right to reasons where the Minister’s failure to provide any
meant it was not possible for the individual ‘to ascertain whether he has a ground for
applying for judicial review and, by extension, not possible for the courts effectively to
exercise their power of judicial review’.
87 Similarly, in R v Secretary of State for the
Home Department, ex parte Doody, Lord Mustill was concerned that an individual could
not mount an ‘effective attack’ on a sentencing decision taken by the executive without
reasons – ‘I think it important that there should be an effective means of detecting the
kind of error which would entitle the court to intervene…’
88 – a concern that outweighed
any democracy-based concerns that the legislature had accorded the decision-maker an
unfettered discretion. And in cases where an appeal has been provided for by statute,
democracy concerns suggest that a duty to provide reasons is an uncontroversial corollary
of the legislative decision to provide a means of appeal.89 Attention to rule-of-law
concerns, and the adoption of a new perspective on the principles of good administration
and democracy, has led courts to insist ever-more that individuals have a right to receive
reasons from administrative decision-makers
Bias in planning decisions
R v Amber Valley DC, ex p Jackson [1985]
The Labour Party controlled both Derbyshire County Council and Amber Valley District Council; Derbyshire entered into a partnership with a private company to develop a theme park in Amber Valley, and the company asked the Amber Valley District Council for planning permission. The Labour group on the District Council decided in favour of the project before the District Council itself considered the matter. Jackson, a local protestor, asked for an order prohibiting the Council from giving permission, on the ground that they had proceeded unfairly and were biased.
Woolf J in the Queen’s Bench Division held that the District Council had to act fairly, but that the political predisposition of the Labour councilors was not itself unfair; a challenge to the decision would have had to show that the councilors refused to consider the merits of the project.
Bias in planning decisions
R (Lewis) v Redcar and Cleveland
An opponent of a leisure centre development sought judicial review on the ground of apparent bias, arguing that the majority party members on the Council had pushed the matter through a vote before an election in a way that created an appearance of political bias. The Court of Appeal held that there was no bias. The Court approved the approach of Woolf J in Amber Valley, and insisted that councillors deciding planning applications ?are not in a judicial or quasi-judicial position but are elected to provide and pursue policies? [69]. Yet the Court held that he Porter test ?should not be altogether excluded in this context? [66]; the question should be whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the councilors made the decision with closed minds [71].
The case extends the idea of an appearance of bias to planning decisions; but since it approves Amber Valley, only an appearance of predetermination can make such a decision unlawful (and not an appearance that the councillors were acting politically) see p 178 for an argument that there should be no Porter-style appearance test for predetermination.
Bias in planning decisions
Broadway Energy v SS [2016]
facts
Ministers who made planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs.
This case concerned an application by renewable energy company Broadview Energy Developments Ltd (“Broadview“) for planning permission to build an onshore wind farm in Northamptonshire. The chronology of how this matter came before the Court of Appeal is somewhat convoluted: permission was initially refused in November 2011 by South Northamptonshire District Council, which Broadway successfully appealed to the planning inspectorate. A local action group then challenged that decision in the High Court, which quashed and resubmitted the appeal to the planning inspectorate for redetermination. Following a public inquiry, the Secretary of State for Communities and Local Government (the “Secretary of State“), who had elected to decide the appeal himself pursuant to powers under the Town and Country Planning Act 1990, refused planning permission in November 2014 contrary to planning inspector recommendations.
Broadview applied to judicially review the Secretary of State’s decision on grounds that it breached natural justice and common law fairness, principally due to alleged lobbying activities by Andrea Leadsom MP. Broadview relied on, among other things, Mrs Leadsom’s various letters and emails to the Secretary of State and the Minister to whom the Secretary of State had delegated the decision, as well as two instances of conversations in the House of Commons tea room and in a lobby.
Bias in planning decisions
Broadway Energy v SS [2016]
first instance
Cranston J, dismissing the challenge, held that the lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP. He attached weight to the fact that the representations made by Mrs Leadsom were repetitive and had been a common theme in the various inquiries that had already taken place. Broadview had known the case being advanced by Mrs Leadsom and conceded that Broadview would not have added anything in response that it had not already said in its submissions to the inquiry. The judge also dismissed the allegation of bias, finding that there was “no evidence to support the contention that the decision was vitiated by actual bias“.
Bias in planning decisions
Broadway Energy v SS [2016]
Decision by the Court of Appeal
The Court of Appeal acknowledged “the principle that a decision maker must not entertain representations from one party without finding out what other parties have to say on the matter“. However, that principle must be applied sensibly in order to prevent the decision-making process being easily subverted, for example by requiring Ministers to circulate repetitive representations made post-inquiry. On that basis, the Court disregarded Mrs Leadsom’s written representations from its analysis.
This left the two oral representations in the tea room and the lobby. Importantly, the Court held that “it is incumbent on a Minister taking a planning decision to make clear to any person who tries to make oral representations to him that he cannot listen to them.” The Court disagreed with the first instance ruling that it was part of a constituency MP’s representative role to lobby Ministers in the context of a “quasi-judicial decision in relation to a controversial planning application“.
On the facts, there was no evidence that Mrs Leadsom’s oral representations during those conversations were discouraged. However, as a result of the factual chronology of these events, neither of the oral representations was held to have made a difference to the decision. This was merely a technical breach and therefore not enough to justify quashing the Secretary of State’s decision.
The Court also rejected Broadview’s allegation of bias because it was clear that Ministers made difficult decisions about controversial projects, some of which would be finely balanced, and a decision in favour of a vocal body of local objectors did not evidence partiality. However, the mere allegation of bias showed “how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties in the planning process or by local MPs.” Doing so could allow for allegations of bias to made “all too easily“.
Bias in planning decisions
Broadway Energy v SS [2016]
Commentary
This case helps to clarify the muddy constitutional relationship between Ministers and MPs and the role of lobbying in “quasi-judicial” decisions such as this one. Although its analysis is restricted to “quasi-judicial” decisions, if not only planning decisions, the Court of Appeal is clear in its message that MPs should not be in a different position from other interested parties, and that Ministers should not allow one party to put its case forward without offering that same opportunity to the “other side”, not least to avoid allegations of bias. Indeed, although the appeal was dismissed, the lawfulness of this particular decision may have been questioned had the chronology of events been different. On that basis, these findings may well lead to heightened caution by MPs and local government in their engagement with Ministers on controversial issues.
Giving reasons for decisions
Dover District Council v CPRE Kent
Where a public authority determines an application for planning permission in what form, and in what level of detail, must the authority set out the reasons for their decision? What, furthermore, are the consequences of failing to provide reasons which meet the requisite standard?
CPRE Kent concerned an application made by China Gateway International Ltd (‘CGI’), for planning permission for a new housing development. The proposed development would span across two sites, one of which is located within the Kent Downs, a designated Area of Outstanding Natural Beauty (‘AONB’). Dover DC’s planning officer’s report, a lengthy and comprehensive document which was made publicly available, noted that CGI’s proposed development would result in significant damage to AONB which, as the proposal stood, could not be justified in light of the national policy commitment to protect AONBs. In the officer’s view, however, a scaling back of the project so far as it related to the Kent Downs would remedy this defect while still, according to the council’s financial advisers, being economically profitable for CGI (an assessment which CGI resisted). The final determination of CGI’s application for planning permission was made by Dover DC’s planning committee. Following a meeting, the minutes of which were made available to the public and in which a variety of views were expressed, the committee decided to reject the planning officer’s recommendation and to grant permission for the original proposal to go ahead.
The applicant NGO, CPRE, initiated judicial review proceedings. Their main ground of challenge was the legal inadequacy of Dover DC’s reasons. It was, argued CPRE, essential that Dover DC set out in the clearest possible terms, in a published statement of reasons, why it had rejected its planning officer’s conclusion that the project was inconsistent with the national AONB policy and why it had preferred the economic assessment of CGI over that of its own advisers. A quashing order should be issued in light of Dover DC’s failure to do this.
Giving reasons for decisions
Dover District Council v CPRE Kent
The major reason for this complexity is not hard to find:
eason-giving in planning law, arguably like reason-giving in English administrative law more generally, is not overseen by some singular, cohesive legal framework. It is, rather, governed by the complex interaction of an array of different legal and quasi-legal standards and values. In CPRE Kent alone, for instance, the Supreme Court was required to navigate at least four different levels of provision – (i) EU statutory provisions, (ii) domestic statutory provisions, (iii) central government policy and (iv) common law values – in order to find an answer to the legal question at the heart of the case. This blog post cannot discuss each of these levels of provision in detail. It will accordingly, after briefly introducing the facts of CPRE Kent, focus on two: (i) and (iv). Readers interested in (ii) and (iii) may like to see my analysis of the earlier Court of Appeal judgment in Joanna Bell, Kent & Oakley: A Re-Examination of the Common Law Duty to Give Reasons in Grants of Planning Permission and Beyond (2017) 22(2) JR 105.
Giving reasons for decisions
Dover District Council v CPRE Kent
Lord Carnwath’s seminal common law values
Firstly, ‘fairness,’ a value which his Lordship noted had played an important role in English reason-giving cases such as Doody. CPRE Kent, of course, was a very different type of case from Doody. In Doody, the House of Lords held that considerations of fairness to the individual required that the Home Secretary, in setting the minimum prison tariff to be served by a convicted murderer, provide the prisoner with a detailed statement containing the basic reasons for the decision. It was, by contrast, no part of CPRE’s argument that Dover DC had failed to treat CPRE fairly, nor that Dover DC was obligated to provide CPRE with an individualised statement of reasons. CPRE’s argument, rather, was that Dover DC had acted unfairly towards the public. Lord Carnwath, nonetheless, did not see this as diminishing the bite of the common law because: here a further common law principle is in play… [The] principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the court. ([55])
Here we see further extension of the Kennedy decision. In Kennedy the Supreme Court extended the application of open justice from its original context (decisions by ordinary courts) to statutory inquiries carried out by the Charities Commission. CPRE Kent marks a further expansion: open justice can seemingly now apply in the planning context, not only when the Secretary of State exercises statutory inquiry functions similar to those of the Charity Commission, but also when a local planning authority takes an initial administrative decision ([55]).
Giving reasons for decisions
Dover District Council v CPRE Kent
BELL:
what is the rationale underlying open justice and how far does it extend?
two things are clear from Kennedy and CPRE Kent. Firstly, open justice is no longer confined to courts or, even, public authorities exercising functions closely resembling those exercised by judges. Secondly, however, it is also clear that open justice will not require a public authority to disclose information in any case in which an applicant seeks it. Thus one theme which played an important role in Lord Carnwath’s in CPRE Kent was the strong public interest he saw in favour of imposing a higher standard of reason-giving ([59]). Whether a clearer rationale for open justice than protection of public interest can be identified is in need of serious and lengthy exploration.
Giving reasons for decisions
Dover District Council v CPRE Kent
BELL:
Conclusions: Implications for the ‘General Common Law Duty to Give Reasons’?
- seminal question
- what form would the reasons take?
why, despite the numerous and cogent calls by eminent scholars and practitioners for the courts to embrace a ‘general common law duty to give reasons’ do the courts continue to resist this idea?
The first important point to note is that the ‘general common law duty to give reasons’, as urged by most commentators, would take the form, not of a simple, universal obligation on all public authorities to publish a statement of summary reasons for their decisions, but of a duty to provide adequate reasons.
‘Adequacy,’ furthermore, is said to be a variable standard, the application of which in any given case would depend on the particular legal and factual considerations which arose therein. Consider again, CPRE Kent. Here is a case in which a public authority, far from taking its decision behind closed doors, has disclosed a considerable body of documentation (including both the planning officer’s 135-page report and the committee meeting minutes) relating to its decision. The applicant’s argument, however, is that this level of disclosure is not good enough and there remain core issues in relation to which Dover DC’s reasoning remains too obscure. Against this background, one way of framing the question the Supreme Court had to decide was whether Dover DC’s reason-giving was legally adequate.
Giving reasons for decisions
Dover District Council v CPRE Kent
BELL:
Conclusions: Implications for the ‘General Common Law Duty to Give Reasons’?
- answer to question of why does the Court resist the common law duty to give reasons?
the core point is this: the idea that all public authorities should be regarded as under a ‘general common law duty’ to provide adequate reasons simply could not help the judges to find answers to the really difficult legal questions at the heart of the case. Perhaps one reason why the courts have so far failed to embrace the idea of the general common law duty of reason-giving, in other words, is that it is not an intellectual tool which offers meaningful guidance as to how to navigate the sorts of legal question which tend to arise in reasons challenges. Whether this concern applies broadly and outside of the planning context, however, must be a question for another day.
R (Save Britain’s Heritage) v SSCLG)
what were the 2 legal questions?
SAVE argued that the Secretary of State was required in law to give reasons for that decision, and failed to do so. It put the case in two ways:
There was a legitimate expectation that reasons would be provided, based on a promise made in 2001 by the then Attorney General Lord Falconer. Although the Secretary of State accepted that it was the practice for many years to give reasons for not calling in an application (pursuant to s.77 of the Town and Country Planning Act 1990), the Secretary of State argued that this practice came to an end in 2014 and that SAVE knew or ought to have known about that change. SAVE maintained that, as a matter of principle, a published policy cannot be withdrawn or overturned by an unpublished practice.
R (Save Britain’s Heritage) v SSCLG)
facts
CA handed down judgment on the controversial application for the Paddington cube, a 19-storey office tower next to a grade 1 listed station and within a conservative area
SAVE challenged on grounds that failed to give reasons
R (Save Britain’s Heritage) v SSCLG)
Lord Justice Coulson
rejected SAVE’s claim that the SS had a general or common law duty to give reasons.
There is no requirement to give reasons in the legislation or case law, it confirmed.
However, it also noted that the Government had issued a green paper promising that reasons would be given for not calling in planning applications. These changes were announced in both Houses of Parliament.
The court announced that the promise had never been explicitly withdrawn.
Therefore, decided the matter on SAVE’s legitimate expectation + granted declaration that SS must give reasons.
R (Save Britain’s Heritage) v SSCLG)
Consequences of case
Represents a firm rap on the knuckles of government but also maps a clear route to follow if the gvt wants to lawfully effect a change to the requirement to give reasons
- it must revoke its promise in clear terms and ensure that it is published widely
Has the common law duty to give reasons come of age yet?
Elliott
how is the duty to give reasons limited?
the duty to give reasons exists in a form which is somewhat
limited.
First, the scope of the duty to give reasons is narrower than that of other principles of good administration. Whereas the duties to act fairly, reasonably, and so on are overarching duties of general application, the default position at common
law is that reasons need not be given, the duty to do so arising only in particular
circumstances.
Secondly, if an agency fails to comply with most principles of good
administration, the legal and remedial consequences are clear: the decision is
rendered invalid and may be quashed via judicial review or challenged collaterally.
In contrast, there is a degree of ambiguity surrounding whether breach of the duty
to give reasons provides sufficient grounds for quashing a decision (and, if so, when), or whether such a step may (or should) be taken only if the absence of
reasons is suggestive of some other error
Has the common law duty to give reasons come of age yet?
Elliott’s argument
the scope of the duty to give reasons and the consequences
of its breach should be aligned with comparable principles of good administration,
such as the duty to act fairly.
To this end, four specific arguments will be advanced:
(1) that there should be a general duty to give reasons;
(2) that it should be regarded, like the duty to act fairly, as a context-sensitive duty;
(3) that its breach should be capable in itself of rendering the decision concerned unlawful;
(4) and that, while there may be circumstances in which it is appropriate for remedial discretion to be exercised in a way which avoids quashing the decision, such circumstances are narrower
than they might initially appear.
- supplemented by normative arguments
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Hasan serves as a reminder that English law remains some distance from a general
common law duty to give reasons. This is significant in several respects.
- re presumption to give reason
First, and
most obviously, it means that (absent a statutory duty to give reasons) the
presumption is still that reasons need not be given, such that the onus is on the
claimant to establish that some feature of the case displaces that presumption
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Hasan serves as a reminder that English law remains some distance from a general
common law duty to give reasons. This is significant in several respects.
- symbolically
Secondly, it may be that the ease with which the duty is now triggered is such that,
as Lord Clyde put it in Stefan, “cases where reasons are not required may be taking
on the appearance of exceptions”23—but the continued absence of a general duty
is symbolically important: it implies that the giving of reasons is less significant
than adherence to other principles of good administration.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Hasan serves as a reminder that English law remains some distance from a general
common law duty to give reasons. This is significant in several respects.
- complicates the law
if Lord Clyde
is right, then formal adherence to the position that there is no general duty unnecessarily complicates the law.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Hasan serves as a reminder that English law remains some distance from a general
common law duty to give reasons. This is significant in several respects.
- arguably narrower as it stands then would be
Lord Clyde’s point
notwithstanding, it is likely that the range of circumstances in which reasons must be given is narrower on the present approach than it would be if the presumption
was in favour—not least because the onus would then be on the defendant to advance a compelling justification for withholding reasons
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why, then, does English law continue to resist a general duty to give reasons?
The stock answer to this question is that requiring reasons is a burden to which decision-makers should not, as a matter of course, be exposed.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
The imposition upon public bodies of any requirement of good decision-making can, in one of two senses, be regarded as a burden.
First, imposing procedural obligations upon decision-makers will have practical and financial consequences: the more elaborate the principles of due process to which a given agency is required to adhere, the more longwinded and expensive the decision-making process is likely to be.
Secondly, unduly onerous
judicially-imposed requirements risk unacceptably constricting the agency’s
discretion, striking an inappropriate balance between administrative discretion and
judicial control. These risks arise particularly in respect of substantive principles
of review, such as reasonableness and proportionality, which are directed at the
extent of the discretionary choices open to the decision-maker.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Notwithstanding the burden, how does Elliott note we should mitigate this?
what 2 reasons are there for doing this?
The key point is that modern administrative law’s standard modus operandi is to address such concerns not by limiting the scope of application of relevant
principles of good administration, but by moderating their intensity (in the sense of the precise extent and content of the obligations which they impose upon
decision-makers).
There are two good reasons for adopting this approach.
(1) On the
one hand, the relevance of the normative concerns underpinning the principles of good administration is constant. For this reason, we do not (at least any longer) encounter discretionary powers that need not be exercised reasonably or fairly or
in line with the object and purpose of the relevant statute.
(2) On the other hand, recognition that the principles of good administration must operate in a manner
which is sensitive to other relevant concerns helps to shape their particular meaning and application in given contexts. For instance, while the duty to act procedurally
fairly now attaches to the exercise of any administrative power liable to affect individuals’ rights, interests or legitimate expectations, the content of the duty
varies dramatically depending on the circumstances. Fairness in some contexts
may mean that affected individuals must have an opportunity to make written representations; in others, it may demand something much more elaborate, such as an oral hearing.
Similarly, while all discretionary powers must be exercised
reasonably, the concept of reasonableness is protean, such that it imposes more or less exacting restrictions upon discretion depending on the circumstances.
(nb he doesn’t think proportionality is different but simply differential intensity of review)
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
his key concern re duty to give reasons:
Why does the duty to give reasons stand outside this tradition whereby
requirements of good administration are treated as being of general application, but are then tailored to the circumstances of the case? It is perfectly clear, for
instance, that the sort of concerns which induce the principle of procedural fairness
to be applied with different levels of intensity in different contexts are also relevant to the duty to give reasons. In some circumstances, the imposition of such a duty
would be far more burdensome than in others, whether because of the complexity
or subjectivity of the matters that fall for decision, or the character of the
decision-making body.
Equally, there are situations in which a notably light duty to give reasons—as well as an undemanding duty to act fairly—would be
appropriate because of the relative triviality of the interests at stake. We will see below that courts are able to moderate the content of the duty to give reasons, but the question remains:
why (if at all) is it also necessary for courts to have at their disposal an additional control device whereby the scope of that duty is narrower
than that of the duty to act fairly—or at least sufficiently ill-defined to enable
courts to hold it inapplicable when they see fit?
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
- will the norms underpinning the duty to give reasons always outweigh other considerations?
- The normative basis of the duty to give reasons
the norms underpinning the duty to give reasons
are not regarded as sufficiently weighty always to withstand countervailing
arguments: thus the fact that giving reasons for a particular type of decision would be especially burdensome might be sufficient to result not in the watering-down
of the duty to give reasons, but in its non-imposition in the first place. What, then,
are the normative values that favour the imposition of a duty to give reasons?
- distinction between instrumentalist and non-instrumentalist reasons
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
instrumentalist
First, if decisions are
accompanied by reasons, affected individuals will be better able to arrive at an
informed view as to whether the decision is a legitimate one. If the reasons are convincing, this may persuade the individual that the decision is legitimate, reducing the likelihood of pointless challenges and enhancing the possibility of acceptance (even if the decision displeases the person concerned) and thus co-operation with
the administrative body concerned.
Alternatively, if the reasons indicate that the decision is flawed in some way, for example because some crucial piece of information was overlooked or misunderstood, the affected individual will be
alerted to the fact that it may be worth challenging the decision, whether by way of complaint, appeal or judicial review.
Secondly, if administrative decisions are
routinely accompanied by reasons—and if those reasons, for the most part,
demonstrate that decisions are taken carefully and conscientiously—this is likely to enhance the confidence of the wider public in the administrative system, and thus its willingness to co-operate with that system.
Thirdly, requiring reasons to be given may serve as a form of discipline upon decision-makers: knowledge that reasons will eventually have to be produced may “concentrate the
decision-maker’s mind on the right questions” (R. v Higher Education Funding Council Ex p. Institute of Dental Surgery [1994] (Sedley J) and encourage an appropriately
careful and thorough approach to the decision-making process.
A related point is
that a duty to give reasons implies official action should be underpinned by reasons (rather than undertaken arbitrarily). A reason-giving duty therefore evidences a
commitment to rationality (A. Le Sueur, “Legal Duties to Give Reasons” (1999)).
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
non-instrumentalist
As Allan puts it:
“The giving of reasons by officials, in particular, can readily be understood
as serving a ‘dignitarian’ function quite distinct from the arrangements for
securing sound decisions … [A]n obligation to give reasons may have a
beneficial effect on the quality of the decision and in that sense contribute to
fairness; but whether or not that is so in any particular case, giving reasons
may be regarded as an integral part of treating a disappointed applicant with the respect which his dignity as a citizen demands.” (T. Allan, “Procedural Fairness and the Duty of Respect” (1998))
- arguably this played a part in Lord Mustill’s reasoning
In Anufrijeva, it was held that the rule of law would be subverted if
the state was permitted to enact administrative decisions to the disadvantage of
individuals without first informing them of the content of such decisions. Such behaviour on the part of the authorities, said Lord Steyn, would be Kafkaesque: the British system would not accommodate a situation in which “the rights of
individuals are overridden by hole in the corner decisions or knocks on doors in the early hours”.
- Clearly, there is a difference between failing to tell someone of
the fact of a decision and failing to inform them of the reasons for it: but the
latter—casting, as it does, the person concerned as a mere object of official
discretion—is arguably no less Kafkaesque, and no less disrespectful of the person’s dignity
Requiring reasons is then consistent with, and constitutive of, a “culture
of justification” whereby the legitimacy of government is regarded as deriving
from “the cogency of the case offered in defence of its decisions”.37 Such a culture
has emerged in the United Kingdom in recent decades, in no small part through
the development (including under the influence of the Human Rights Act 1998)
of administrative law,
38 against which background the absence of a general duty
to give reasons is highly anomalous.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
what is striking about the underlying justifications for the imposition of a reason-giving duty?
similarity, in two respects, to those that underpin the
duty to act in a procedurally fair manner.
First, one—almost certainly the dominant—reason for the imposition of the latter duty isinstrumental. The quality of decision-making is likely, in most situations, to be enhanced by the deployment
of fair procedures which enable relevant parties’ views to be expressed, and thus taken into account, and which facilitate the testing of evidence. In much the same
way, as Fordham argues, “Consciously duty-bound to articulate their reasons,
decision-makers’ minds are the more focused and their substantive decision-making
the better.”
Secondly, as with the duty to give reasons, alongside the instrumental
argument for procedural fairness is a non-instrumental one. One of the principal effects of operating a fair procedure is that interested parties—most obviously and
importantly the person liable to be affected by the decision—are able to participate in the decision-making process. The obverse of such a system, within which decisions affecting people’s rights, interests and legitimate expectations are made
entirely behind closed doors without any scope for participation, constitutes a
fundamental denial of the dignity and status of the individual. It is for precisely
this reason that it can be argued that fair procedures should be operated even if
they would make no difference—for example, if the evidence against the person concerned is overwhelming—and it is for the same reason that decisions should
be explained and justified to those affected by them.
There is some judicial recognition of this argument, although there is a preference to justify it by reference not
to dignitarian concerns but to more practical matters such as the appearance of fairness and hence the maintenance
of public confidence (R. v Thames Magistrates’ Court Ex p. Polemis [1974] 1 W.L.R. 1371 at 1375-1376 (Lord
Widgery C.J.)); or the danger of assuming that a fair hearing would make no difference before it has taken place
(John v Rees [1970] Ch. 345 at 402 (Megarry J.); Secretary of State for the Home Department v F [2009] UKHL 28;
[2009] 3 W.L.R. 74 at [63] (Lord Philips)).
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
the duty to give reasons and the duty to act fairly are underpinned by strong and strikingly similar arguments:
in instrumental terms,
the imposition of both duties is likely to enhance the quality of decision-making, while in non-instrumental terms both duties serve to secure appropriate respect for the dignity of the individual. Against this background, can a case be made for
resisting a duty to give reasons that is as broad—and general—in its application as the duty to act fairly?
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
addressing argument against alignment of duty to give reasons and other principles of good administration
- does not giving reasons affect the dignity less?
- are the practical consequences less? (and therefore more readily outweighed by other factors?)
- response
In some, perhaps many, cases, the adoption of a fair procedure will constitute a prerequisite for the making of a good decision. This
follows because if the person liable to be affected is denied the right to participate,
the decision-maker may, and in some cases will, proceed on a mistaken or
incomplete basis: evidence apparently adverse to that person may go unchallenged; evidence in her favour may not be considered. In contrast, it is difficult to think
of circumstances in which the absence of a duty to give reasons would necessarily preclude the making of a good decision.
The difference, then, is that acting fairly will often facilitate the making of a good decision, whereas a requirement to give
reasons will incentivise a rigorous approach (and thus increase the likelihood of a
good decision).
- Against this, however, must be set the fact that giving reasons
serves additional instrumental purposes—such as enabling people to make informed
judgements about whether to appeal or seek judicial review, which might, with
obvious financial benefits, reduce the number of hopeless challenges—over and above those fulfilled by the duty to act fairly.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
arguments against giving reasons
2 general arguments
First, it is said that there are certain contexts in which no duty to give reasons should be imposed because the giving of reasons would threaten important interests (e.g. nationalsecurity).
And, secondly, it is argued that a general duty would impose an intolerable burden upon decision-makers. These arguments
are overstated at best, specious at worst.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
arguments against giving reasons
- Elliott’s response
- may be highly exceptional circumstances in which some vital interest
would be irreparably damaged by the giving of any reasons at all: but such situations are likely to be rare, and in any event this is not an argument against a general duty to give reasons—it is an argument either against a general duty that admits of no
exceptions or against a general duty that is formulated such that, when applicable, it requires the disclosure of reasons to an extent that is inconsistent with competing
policy concerns. What it is not is an argument against a general duty per se. - The second argument is merely a less extreme, but ultimately no more
convincing, version of the first. The duty to give reasons is a duty to communicate,
not a duty to manufacture, reasons. By definition, a lawful administrative decision will be rational, and will be supported by reasons. If, then, reasons exist, how hard
can it be to communicate these to affected parties? Moreover, to the extent that
concerns about administrative burdens are genuine rather than imagined, it is
difficult to envisage why they could not be adequately accommodated by means
of moderating the content of the duty to give reasons, rather than by refusing to
impose such a duty in the first place.
Therefore, the two arguments against duty to give reasons are wide of the mark
- While there may be situations in which such interests tell against requiring any reasons to be given at all, these should be very rare—both because the normative values served by the duty to give reasons are themselves compelling,
and should not therefore be readily overcome, and because the content of the duty can be manipulated such that the extent of reasons required is tailored to the
circumstances, thus permitting account to be taken of specific factors that may
make the provision of extensive reasons inappropriate. What this boils down to is
an argument that the content, not the scope, of the duty to give reasons should be
regarded as the principal control device—an approach that was rightly embraced
decades ago in relation to the duty to act fairly
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
A context-sensitive duty to give reasons
Starting position - heavier duty
if emphasis is to be placed on the content, rather than the scope,
of the duty as the principal control device, neither a uniformly superficial nor a
uniformly rigorous duty will do
The default position, quite sensibly, is that reasons must be “intelligible” and
“adequate”, enabling the reader to understand how the agency reached its
conclusions on the principal issues of controversy.
From this starting-point,
particular features of the case may call for a heavier or lighter duty to give reasons. For example, the more important the interest at stake, or the more decisive a particular factor within the decision-making process, the more that will be required by way of reasons.
Institutional considerations may also be taken into account:
for example, it has been held that, bearing in mind the time and expense involved in appeals, judges must give sufficient reasons to enable appellate courts to make
informed decisions about whether permission to appeal should be granted.
Moreover, the more surprising the decision, the more that will be required in terms of reasons—a development which indicates that Sedley J.’s “aberrance” trigger
is maturing into a factor that influences the content of the duty. This principle has applied, for example, where a decision contradicts authoritative advice received
by the decision-maker,
50 involves overturning first-instance decisions,51 or departs
from the decision-maker’s recently-advocated position.5
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
A context-sensitive duty to give reasons
Starting position - lighter duty
(1) First, if statute has imposed a limited duty to give reasons, such legislative intervention may be taken to indicate, as Collins J. put it in Hasan, “thatParliament considered
what information should be given and to whom” and that an inconsistently “wide
common law obligation” should not be imposed.53 This argument should not,
however, be pressed too far: while it is well-established that the precise content
of principles of good administration falls to be determined, inter alia, against the relevant statutory background, it is not clear that the terms of the statute should
be decisive (save to the extent that they clearly displace or curtail a common law duty to give reasons that would otherwise apply). After all, it is uncontroversial
that the principles of natural justice may “supply the omission of the legislature”,
such that limited (or no) statutory insistence upon procedural fairness does not preclude the imposition of (more exacting) common law requirements.
(2) preclude the imposition of (more exacting) common law requirements.54
Secondly, less will be required if it is peculiarly difficult or burdensome to
articulate reasons. Indeed, this was the putative justification for the very light duty
in Asha: Lord Woolf C.J. noted that the decision-making body consisted ofseveral
individuals, each of whom may have had reasons for the decision different from
those of their colleagues. If detailed reasons had been demanded, it was said that
this would have required each member of the panel to articulate his or her view
of the relative merits of the claimant’s application as against the other applications.
This, it was said, would be an “undue burden”.
- NB shouldn’t take this argument too far
Finally, however, this is not to deny that there may be considerations weightier
than mere expediency that tell against a duty to provide detailed reasons, standard public policy considerations—such as national security, international relations,
and so on—being obviously relevant in this regard. There may, of course, be
circumstances in which such a factor makes the imposition of even a light duty inappropriate: but the preference should always be to require the provision of as
much by way of reasons as is consistent with due regard for the policy interests
that would be compromised by more extensive disclosure
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Breach of duty: legal and remedial consequences
The first sense, then, in which the duty to give reasons is the poor relation of other principles of good administration is the courts’ refusal to embrace it as a
generally-applicable principle.
The second consists in the ambiguity surrounding
the legal and remedial consequences of its breach. The consequences of breaching most principles of good administration are clearly established. If an agency behaves
contrary to most such principles—for instance, by acting without jurisdiction,
unreasonably, procedurally unfairly, or in breach of a legitimate expectation—the
administrative act or decision concerned will be invalid (Boddington). This legal consequence
in turn produces remedial consequences: the act or decision in question can (subject
to the exercise of the court’s discretion) be quashed in judicial review proceedings
or (unless the relevant legislation explicitly or implicitly provides otherwise)57
challenged collaterally in other proceedings.58
However, the position is (or at least until recently has been) less clear when there has been a failure to comply with the duty to give reasons.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
Key summary:
quashing decisions solely on the basis of inadequate
reasons is both pointless, because the same decision could be taken again, and
inappropriate, because the content of the decision itself is untouched by the breach
of the duty to give reasons.
[…]
One possible reason for such caution is concern that litigants would act exploitatively by seeking to have otherwise sound
decisions set aside on the basis of inadequacy of reasons. Indirect support for this view is furnished by the apparent exasperation of Lord Brown in the South
Buckinghamshire case, when he said that if the effect of guidance given in that case as to the content of the reason-giving duty was to discourage challenges on
the ground of breach of that duty, he “would count that a benefit”. But why should
concerns of this nature apply peculiarly to the duty to give reasons?
The answer may lie in a feature that distinguishes it from other requirements of good administration—namely that it falls to be compiled with, at the earliest, contemporaneously with the making of the decision.
In contrast, all other principles
of good administration serve to condition the behaviour of the agency prior to the
making of the decision.For this reason, breaches of other (“non-reasons”) principles of good administration necessarily have one of two consequences, neither of which, it would appear, breaches of the duty to give reasons can have.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
- one response (non-instrumental argument again)
Adami, Auld L.J. said that unless the decision was “otherwise and plainly invalid”, quashing it would be a “disproportionate and
inappropriate response to a failure to give adequate reasons”.74 However, this sort of thinking is vulnerable on two grounds
- the duty to give reasons
serves an important non-instrumental function by, in effect, requiring public bodies to demonstrate the legitimacy of their decisions. Decisions accompanied by
adequate reasons pay due respect to the dignity of the individual, acknowledging
thats he deserves to know why the decision has been made, rather than being treated as an object of state power who is required blindly to obey the dictates of the agency concerned.
Against this background, it may be argued that nothing short of a quashing order will do, because the individual must be immediately freed
from any obligation to act in accordance with the decision in question, or from the consequences of others behaving pursuant to such an obligation. The perceived force of this argument necessarily depends upon how convincing, in the first place, the non-instrumental case for reasons is considered to be—but the argument is especially compelling if the decision affects interests of the claimant which are
particularly fundamental, if the impact of the decision is peculiarly harsh, or if
there has been a wholesale (as opposed to a partial) failure to give reasons such
that the claimant is (unless reasons can readily be inferred) left entirely in the dark.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
- second response
(i)
(1) First, it is true that if an otherwise sound decision is quashed for lack of reasons,
the same decision can usually be reached again.
However, the absence of reasons reduces the certainty with which it can be stated that the decision really is otherwise sound: the absence of reasons obscures the legality of the decision. It is therefore impossible to be wholly confident that quashing a decision for lack of reasons would—because the same decision could lawfully be taken again—be pointless.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
- second response
(ii)
(2) Secondly, we can go further than saying that a reasons-based victory may not be purely Pyrrhic. When the duty to give reasons applies, individuals are entitled not merely to an otherwise lawful decision: they are entitled to a decision which
is accompanied by contemporaneous reasons and which is otherwise lawful. Quashing a decision which is unaccompanied by reasons but which is otherwise lawful does not, therefore, give rise to a Pyrrhic victory: even if the decision itself
is the same the second time around, the decision-maker is nevertheless required
to do that which has not yet been done—namely to reach a lawful decision for
which contemporaneous reasons are given
Allowing an otherwise lawful decision
to stand while requiring ex post reasons to be given denies the claimant that to
which she is legally entitled, and is very much second best from her perspective.
This is because there is a risk that allowing the decision-maker to supply ex post reasons will result in a failure to elicit the true reasons for the decision.
For example,
in Wall, a local authority had failed to provide summary reasons for a planning
decision.79 When, several months later, members of the planning committee were
asked for their reasons, it transpired that the passage of time had dimmed some of their memories:some of the reasons advanced were based on factual misconceptions
and were hence highly suspect
There is also the possibility that if public bodies
are allowed to advance non-contemporaneous reasons, they will be tempted to engage in ex post facto rationalisation of the decision, seeking to show it in a better
light than is deserved
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
- second response
(iii)
Thirdly, it can be argued that there is a heightened risk that a decision will be
unsound if it is unaccompanied by adequate reasons. This is because, as noted
above, a requirement to give reasons imposes discipline upon the decision-maker,
acting as an incentive for a decision-making process which isthorough and rigorous.
A claimant forced to accept a decision unaccompanied by adequate
reasons—whether or not the court requires the provision of ex post reasons—is
therefore denied a decision that has been taken pursuant to a process upon which
the requirement to give contemporaneous reasons has exerted an incentivising
influence. An obvious objection to this contention isthat the decision-maker would
not have known, when going through the process, that the court would desist from
quashing the decision in the absence of adequate reasons: the mere risk of quashing
might be incentive enough. That may be so, but it seems likely that a consistent
judicial policy of quashing stands the greatest chance of fully exploiting the
discipline-inducing potential of the duty to give reasons.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Why not quash as a matter of course?
Elliott qualifies his argument - may be inappropriate to quash in some circumstances
None of this is to deny that situations will arise in which quashing a decision
unaccompanied by adequate reasons would have wholly disproportionate negative
consequences, whether in terms of financial cost, administrative chaos or prejudice
to the interests of third parties or the wider public. It is in precisely such
circumstances that there is a role for remedial discretion; but, in their absence, a
strong presumption in favour of quashing should prevail for the reasons set out
above.
Has the common law duty to give reasons come of age yet?
Elliott ‘Limiting the principles of good administration: scope or content?’
Conclusion
This paper has highlighted two respects in which the duty to give reasons is
arguably underdeveloped as a ground of judicial review.
First, there is still no general duty at common law to give reasons. This position,
it has been argued, is unsatisfactory; and to the extent that it is underpinned by concerns about the practical consequences of imposing a wider duty to give reasons, it has been suggested that such concerns can better be accommodated by
manipulating the content of the duty such that the depth of reasons required is set
according to the context. In this sense, attention should shift from the scope to the
content of the duty, with the latter being relied upon as the principal control device.
This would mirror comparable steps taken in relation to the duty to act fairly, and
would result in a clearer but more subtle legal framework.
Secondly, there is a degree of ambiguity concerning the legal and remedial
consequences of breaching the common law duty to give reasons. Even though
there is now clear authority for the proposition that failure to give reasons may
render a decision invalid, there remains some evidence of judicial reluctance to
view quashing as the natural remedy in such cases. While there may be
circumstances in which remedial discretion should be exercised so as to leave
intact decisions unaccompanied by adequate reasons, those circumstances are
much narrower than might at first appear. In particular, there are strong practical
and non-instrumental arguments in favour a general judicial policy of quashing
decisions for which adequate reasons are not contemporaneously given.
The duty to give reasons as a principle of English administrative law has
developed considerably over recent decades. The limitations and uncertainties
highlighted in this paper call into question whether it has yet fully come of age,
but it is clear that it is on the brink of maturity. It is to be hoped that the relatively
modest further steps which are required will be taken soon.
