Procedural Fairness (L11) Flashcards
What are the two main rationales for procedural fairness and which case shows this?
Encouraging accurate decision-making (instrumental rationale).
Respect for persons (intrinsic rationale).
Osborn v the Parole Board [2013] UKSC 61, [2014] AC 1115.
What are the legal sources of procedural fairness?
Legislation.
A decision-maker has not acted lawfully if they have not followed the procedures laid out in legislation.
Common law principles of procedural fairness.
Impartiality.
Fair hearing.
Article 6 ECHR.
Procedural impropriety in the Diplock classification.
Legitimate expectations.
To which case does the development of the procedural fairness doctrine date back?
Cooper v Wandsworth Board of Works (1863) 143 E.R. 414.
Emphasized the importance of a right to a hearing even where there was no provision for it in statute: “a board exercising this large power should follow the ordinary rule, that the party sought to be affected should be heard” (Wiles J, at 194).
On what basis was the application of natural justice not applied in some English cases?
The application of natural justice was excluded in some cases based on:
The right/privilege distinction.
Privilege = often used to deny that a hearing was necessary before a license be taken away from a person.
The judicial/administrative distinction.
Courts often wouldn’t imply an obligation to observe natural justice. unless the decision was a judicial one.
Administrative decision = no obligation to grant a hearing.
Criticisms: important to people but not valued by the court e.g. an important license is seen as a ‘privilege’.
Nakkuda Ali v Jayarante [1951] AC 66.
R v Metropolitan Police Commissioner, ex parte Parker [1953] 1 WLR 1150.
How did Ridge v Baldwin [1964] AC 40 show the revival of natural justice?
Chief Constable dismissed for “neglect of duty” by Brighton Watch.
Committee without a hearing. Held unlawful by the court:
There is no general principle that a body has to be acting or required to act ‘judicially’ for the rules of natural justice to apply?
The effect was that the obligation to observe natural justice was applied to a wider range of administrative decisions.
Increasingly, it came to be assumed that all decision-makers were obliged to act fairly and that the only issue was what fairness required.
What is the difference between the duty to comply with natural justice and the duty to act fairly?
‘… “principles of natural justice”… That phrase perhaps might now…..be better replaced by speaking of a duty to act fairly. But …. it is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case…’
GCHQ case [1985] AC 374, Lord Roskill, 412.
But, there is no analytical distinction between these concepts.
What is the content of procedural duties?
There are no generally applicable rules of procedure; what is required is context dependent.
The traditional characteristics of court procedure - representation, examination and cross examination of witnesses etc may or may not be essential according to the circumstances.
What does Tucker LJ say in Russell v Duke of Norfolk [1949] 1 All ER 109 about the content of procedural duties?
“The requirements of natural justice must depend upon the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter which is being dealt with and so forth”.
Page 118.
