Fairness
audi alteram partem: hearing the other side before a decision is made.
nemo iudex in causa sua: no one should be a judge in their own cause.
‘No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, expect by the lawful judgment of his peers or by the law of the land’. [1]
‘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 independence and impartial tribunal established by law’. [2]
Procedural Fairness:
Procedural fairness merely examines the procedures according to which a decision is taken, but not the decision itself.
A procedurally fair decision is not necessarily a good one; a procedurally unfair one is not necessarily a bad one.
Requirements of Fairness:
Consultation.
Fair and public hearings. [3]
Hearing representations (written and/or oral).
Reasons for a decision are not required, but there is a right to notice of the general case against them. [4]
No need for judicialize procedure. [5]
Impartiality and open-mindedness (decision maker not already made up their mind).
Justifications for Fair Process [6]:
Instrumentalism:
Emphasises link between process and direct outcome: a procedural requirement is justified to the extent that it encourages the correct outcome.
Protection of Process Values:
Processes are designed to protect values independent of the direct outcome of the decision. These values contribute to correct outcomes but are not their primary justifications.
‘justification for a claim to fair process, accordingly, lies not in the ability of such processes to achieve correct outcomes, but in the respect that they afford to the dignity and autonomy of individuals.’
‘To deny an individual the opportunity to participate in decisions affecting her is to deprive her of the conditions necessary for continued moral agency.’
Justice:
A fair hearing does not merely improve chances of tribunal reaching the right decision, but it also avoids the involved parties feeling a sense of injustice and disrespect. Additionally, it respects the rule of law.
‘justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken’. [7]
Historical Developments:
19th Century:
‘the justice of the common law shall supply the omission of the legislature’. [8]
Early 20th Century:
Courts began to divide types of decisions into judicial, administrative and quasi-judicial. Procedural fairness was only enforced onto judicial and quasi-judicial decisions. The Donoughmore Committee criticised the courts approach here.
Late 20th Century:
Post-1960’s there was a ‘fairness revolution’, which marked a shift in terminology from ‘fairness’ to a ‘duty to act fairly’ and a rejection of the distinction between administrative and quasi-judicial functions, broadening the scope of procedural fairness principles.
In Ridge v Baldwin, a Chief Constable was subject to a criminal prosecution. CC was found not guilty but dismissed by police authorities. The House of Lords decide that CC’s dismissal was not lawful as it was made without CC being able to plead his case. This goes against natural justice.
In Re HK, judicial review of the decision of an immigration officer was made on the grounds of procedural unfairness. Even if the decision is not judicial in nature, the decision maker must act fairly.
In R v Gaming Board, B and K’s gaming licence was revoked by GB. They brought judicial review against the decision. The court held that there is no duty to disclose confidential information (such as an informant) but they must give a fair opportunity to the aggrieved party to contradict them.
Bias and Partiality:
There is automatic disqualification for any pecuniary (financial) or personal interest.
In Dimes, D brought a claim against a decision made about GJC because the Lord Chancellor held a large number of shares in the company when the decision was made. The House of Lords agreed that ‘judges must be seen to be fair’, so the Lord Chancellor was excluded from sitting as a judge on the case.
‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’. [9]
Judges should not act / make judgements on cases where they hold senior positions.
In Pinochet, P (former President of Chile) was the subject of an international extradition warrant by Spain. The court held that status as former president does not make P immune, but extradition was still not granted (due to illness).
Amnesty International intervened in the case. Lord Hoffmann was an active member and chair of the group. As a result, an action in judicial review was brought against decision in Pinochet (No 1).
Test: ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. [10]
Legitimate Expectations:
Promise / Undertaking + Detrimental Reliance = Legitimate Expectation
Elements (of Procedural Legitimate Expectations) [11]:
Promise / Undertaking:
A clear, unambiguous statement without qualification.
‘almost-contract’ [12]
‘guidance / instruction’ [13]
‘established practice / policy’ [14]
In ex parte Bancoult, a group of Chagos Islanders sought judicial review after they were compulsorily removed from their home by an Order in Council. They won and a government spokesperson made a statement. A second case was brought as to whether they could rely on the statement.
The House of Lords held that the statement was not a clear and unambiguous promise, so their second claim failed. Lord Mance dissented.
In Ng Yuen Shiu, N was an illegal entrant into Hong Kong. Following an announcement that illegal immigrants would be given the right to interview before a decision was made about deportation, N turned himself into authorities. N was deported without interview and brought claim.
Fraser LJ: ‘The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.’
In ex parte Khan, the Home Office refused entry of a child for the purposes of adoption on a ground not mentioned in the provided guidance. K won under his judicial review claim.
‘A body acting as a decision-maker and consulting those affected by that decision, was not to be permitted to use a test that had not been discussed with those consulted and affected by it.’
Detrimental Reliance:
The claimant must have relied upon the promise, and as a result lost out.
In Rashid, it was decided that even though R had not relied on a statement, the Home Office should have still applied published policy.
‘very much the exception rather than the rule that the detrimental reliance will not be present’. [15] Reliance strengthens a claim, but is not necessarily a requirement.
In Mandalia, M’s visa request was rejected because they didn’t provide sufficient financial records. M was not given a chance to remedy their fault.
The Supreme Court commented on how the doctrine of detrimental reliance is ‘strained’ where the claimant is unaware of policy or where policy is not aimed at individuals.
In GCHQ, unions claimed a legitimate expectation, based on past practice, that they would be consulted about proposed changes to the terms and conditions under which civil servants worked under.
Substantive Legitimate Expectation:
The question arises as to whether there is a way of making a claimants legitimate expectation substantive: the continued enjoyment of the content or substance of an existing practice or policy after the decision maker has changed or abolished it.
The argument follows that since the claimant has relied on the defendant's promise to their detriment, the outcome should be in their favour. However, if this was cast too broadly, issues could arise when policy changes.
Until recently, courts were unwilling at address substantive issues with legitimate expectations. It is now accepted that substantive legitimate expectations may be generated by public bodies and should be respected, unless there is an overriding public interest in allowing the public body to go back on its word or conduct. [16]
In Coughlan, a health authority sought to move C from home care to a specialist NHS facility. She was promised a ‘home for life’ there. The care home closed, meaning C had to move.
The Court of Appeal held that C had a legitimate expectation that the home would remain open. There was no overriding public interest to revoke the promise, so care home had to remain open. Note: courts are uneasy to apply this. [17]
‘Authority shows that where a substantive expectation is to run the promise or practice … must constitute a specific understanding, directed at a particular individual or group, by which the relevant policy’s continuance is assured’. [18]
‘though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good’ [19]
Resources:
References:
[1] Magna Carta (1215) [2] European Convention on Human Rights (1950) Article 6 [3] European Convention on Human Rights (1950) Article 6 [4] R v Home Secretary, ex parte Al Fayed [1998] 1 WLR 763 [5] Bushell v Secretary of State for the Environment [1981] AC 75 [6] G Richardson, ‘Existing Approaches to Process in Administrative Law: The Legal Regulation of Process’, in G Richardson and H Genn (eds) Administrative Law & Government Action (Oxford: Clarendon Press 1994) ch 5, 111-14 [7] Osborn v The Parole Board [2013] UKSC 61 [8] Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 [9] R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 [10] Porter v Magill [2001] UKHL 67 [11] R (on the application of Association of British Civilians: Far Eastern region) v Secretary of State for the Defence [2003] QB 1397 (Dyson LJ at [62]); R v IRC, ex parte MFK Underwriting Agents [1990] 1 AC, 1569; The United Policyholders Group and others v The Attorney General of Trinidad and Tobago [2016] UKPC (Lord Neuberger at [37]) [12] R v North and East Devon Health Authority, ex parte Coughlan [2001] Q.B. 213 [13] Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 [14] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (GCHQ Case) [15] R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 W.L.R. 1115 [16] Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens, Public Law: Text, Cases, and Materials (4th edn, Oxford University Press 2019) 659 [17] See The United Policyholders Group and others v The Attorney General of Trinidad and Tobago [2016] UKPC 17; R (on the application of Abdi & Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 [18] R (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 (Laws LJ) [19] R (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 (Laws LJ)
Cases Mentioned:
Ridge v Baldwin [1964] AC 40
Re H.K. (an infant) [1967] 2 QB 617
R v Gaming Board for Great Britain, ex Parte Benaim and Khaida [1970] EWCA Civ 7
Dimes v Grand Junction Canal (1852)
R v Bow Street Magistrate, ex parte Pinochet (No 2) (1999)
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61
Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
R (on the application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744
Mandalia v Secretary of State for the Home Department [2015] UKSC 59
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (‘GCHQ’)
R v North and East Devon Health Authority, ex parte Coughlan [2001] Q.B. 213
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