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.
