Procedural fairness

“Procedural fairness blooms in the heart of any lawyer who takes pride in the
contribution of the rule of law along with good and decent government who is
respectful of the governed” (Allan, Procedural fairness, and the duty of the respect,
1998, UJLS, 497). Dr John Stanton says that as lord Mustill categorically identifies
procedural fairness as an intuitive concept, its understanding from lord Diplock’s
traditionally rule of law rich statement from GCHQ case however remains elusive.
Through the thorough research of the texts from Sir William wade it can be observed in
accord of his philosophies that practice and usages of principles of fairness espousing
impartiality can be traced back to ancient times up to the late 18th century. These
principles were central to legal system even to the extent as observed in the case of Dr
Bonham 1610. Where CJ coke held that an act of parliament can be held void if it holds
the man a judge in his own right. On one hand this principle underlines the crucial
nature of the procedural fairness but in the modern times the application of such a
principle today would be impractical and a direct contravention of entrenched
parliamentary sovereignty.
To comprehend the value and substance of procedural fairness a precisely analytical
observation and approach is required to illuminate upon the context and principles
enshrined in the vast theoretical matter and case laws of administrative law. A broader
standardized approach of defining the procedural fairness can be illustrated by usage of
two Latin maxims audi alteram partem and nemo iudex in causa sua which literally
mean hear the other side and no one should be the judge of his own. The primary
emphasis of these maxims can be seen in case of R V chancellor of Cambridge 1723. In
which Dr Bentely invoked his right to be heard before a decision on the alleged charges
against him is taken. Whereas in the narrow and more accurate approach words of
Professor Peter Leyland encapsulates the doctrine academically as: “an uncodified
system of common law rules offering procedural safeguards that have gone through
evolution by judiciary themselves to ensure that decision making bodies act in
compliance with doctrine of fairness”. (Peter Leyland, Procedural impropriety,
administrative law)
From the aforementioned definitions one can analyze that the values of the common
law doctrine of procedural fairness encompasses the right to a fair hearing and the rule
against biasness thereby also ensuring that system created to ensure fairness remains
fair when it comes to the practicality or application of such rules and procedures, thus
fulfilling the emphasis of rule of law. In context of the importance of the doctrine
professor Mark Elliot while commenting on Professor D J Galligan’s instrumental views
on procedural fairness gives his remarks as “the exclusive importance of the decision-
making process is to ensure that the person being affected by it should be informed of
the issues through notice, his opinions upon the matter should be heard, and then
subsequently supplying him with the reasons to the decision”. Moreover, this in
accordance with Professor Jason Varuhas serves to verify that the person is participant
of a fair administrative process and not an object of an authoritarian administrative
regime. Similarly, legal philosopher TRS Allan also emphasizes that values of procedural
fairness can be summarized as “combination of our commitment to substantive justice”.
After the review of the theoretical context and values of the procedural fairness, a
scholarly illumination upon some common law principles central to this doctrine is
necessary. “Better decision are the outcomes of the procedurally fair decision making”,
this principle was briefed by Lord reed in Osborne V Parole Board 2013. Moreover, lord
Phillips of Worth Matravers described that if a party to the legal proceedings realizes
that he cannot have any say in the decision-making process then there will be feelings of
resentment.
Furthermore, legal principles in the light of secretary of state for the home department
v AF (no 3) 2010 discusses that “justice is intuitively understood to require a procedure
which pays due respect to the person’s rights, this respect means that individual is
allowed to participate in the decision which affects his rights”. Moreover, according to
Michael Varney respect to the rule of law also remains a central value to the same
decision-making process. Through the review of these principles, it can be underlined
that common law through fairness underpins the importance of respect of individual
rights such as tribunals considering all the materials before decision making, procedure
of administrative bodies to follow rule of law and thus also acknowledging once again
right to be heard under the domain of procedural fairness.
Moving forward central to understanding of the procedure and practice of fairness are
two common law traditional approaches highlighted by Professor Mark Elliot as power
in question being judicial or administrative and impact of decision on the individual.
Through an unbiased view this essay criticizes common law’s early practices contrary to
the very notion of procedural fairness itself. As such the practices preceding Ridge V
Baldwin entailed the notion as Professor Mark brilliantly describes it as a fallacy which
limited the scope of implementation of procedural fairness only upon the decision-
making bodies who were performing judicial functions. This created an unnecessary
conceptual dichotomy which resulted in immunity of bodies performing administrative
functions as compliance to natural justice was not demanded from them. This can be
observed in the judgement of Privy Council Nakkuada Ali V Jayaratne 1951 in which the
right of hearing was not granted to a party in question. Similar conclusion was reached
by HOL in R V Metropolitan police commissioner exp Parker 1953. The effect of the
conceptual dichotomy resulting in executive being granted powers to bypass procedural
fairness on grounds of not performing judicial functions can be seen in case of Franklin
(1948). Professor William wade regards this era of administrative law as a “product of
distorted reasoning”.
The impact-oriented approach also known as renaissance of procedural fairness can be
observed through the judgement of Ridge V Baldwin which liberated the doctrine from
shackles of unfairness. According to Dr John Stanton Ridge V Baldwin has reinstated the
importance of right to be heard under the procedural fairness. This case also regarded
the “duty to act judicially for the application of rules of justice as being inconsistent with
the principles of the natural justice” (Lord Reid). Following Ridge, the incumbent law on
procedural fairness can be illustrated through McInnes V Onslow fane 1978 which
through statements of Megarry V-C draws up three categories of cases.
First, Forfeiture cases in which Dr john Stanton argues that there is a right to be heard
before an unbiased tribunal to ensure that the person being affected by a particular
decision of taking away his certain rights or position is involved in decision making.
Second, Application cases where there is no right to be heard as such no existing right is
being taken away. Third, expectation cases where there is legitimate expectation that a
certain outcome will be there in accord of the past practice or policy. It can be
encapsulated that current focus of the modern law on procedural fairness is more
towards the right to be heard before unbiased tribunal, legitimate expectation, and duty
to act fairly. In addition to this, the duty to act fairly which broadly highlights that the
decision-making body should engage the parties is enshrined in the statements of Lord
Nueberger in Bank Mellat (No 2)
Furthermore, the doctrine of legitimate expectation not only affects but also empowers
the law on procedural fairness by creating a certainty in the law. As in accord of
Professor Mark Elliot “the representations and conduct of a public body may entitle an
individual to fair treatment but in absence of such conduct there should not be any
legitimate expectations of fair treatment”. This principle was enshrined in the Privy
Council case Attorney General of Hong Kong V Ng Yuen Shiu (1983). Professor Elliot
further adds that under the same doctrine individual “who is entitled to fair treatment
can claim a higher-level of procedural protection conditional to the fact that if such a
conduct on part of the decision-making body exists”. Thus, the doctrine intrinsically
promotes the value and scope of procedural fairness.
After a substantive analysis of the legitimate expectation on the procedural fairness its
noteworthy to briefly illustrate the application of article 6 of ECHR on the procedural
fairness. If academically reviewed it can be stated under the light of Professor Elliot’s
comments that common law principles provide a better convenience in regards of
bringing the claims under procedural fairness in comparison with the article 6. However,
if the parliament lays down a statutory scheme affecting the common law principles of
fairness under a specific scenario than a further debate can not be drawn upon by the
courts due the existence of parliament’s legislative sovereignty. Whereas if the certain
act of parliament goes against the right of individuals mentioned in article 6 of the ECHR
and the claim is brought under the same than as Professor Elliot highlighted that in such
a case declaration of incompatibility can be issued under section 4 of the HRA. Which is
likely to trigger amendment.
Before summarizing the law on procedural fairness, it is crucially important to reflect
upon some of the limitations on the legal doctrine. First limitation can be illustrated in
the words of lord Bridge through case of Llyod V McMohan 1987 that what rules of
natural justice or fairness impose cannot apply in the same manner in every decision
reached. Second limitation can be observed by statement of Lord Phillip from the case
of secretary of state for the home department v AF (No3) 2009 that it is in principle
legally possible for a decision-making body to refuse the right to be heard if the exercise
of such right would make no difference.
In totality of all arguments, it can be summarized through the brief categorical analysis
of legal literature and case laws available on law of procedural fairness that the doctrine
has struggled through different periods of time to maintain availability of natural justice
for everyone equally under the notion of rule of law. However, the changes in the
doctrine’s subject matter have evolved through judicial decisions the conceptual
dichotomy of treatment of cases under heads of administrative and judicial should be
reformed to allow not only a fair mechanism of checks and balances over the executive
action but also a more clarity oriented uniformed set of rules and procedures
underpinning the supremacy of the doctrine.
Which can be made possible through a creation of administrative court system. Which
would be empowered to deal with both judicial review challenges and appeals against
administrative decisions. Lastly, considering Brexit if in case UK also chooses to
withdraw from ECHR than in the outcome of such an event the human rights act might
be repealed in favor of introducing a British bill of rights. Such an arrangement is likely
to increase reliance of public on the common law principles of procedural fairness in
absence of ECHR’s article 6. Thus, this reinstates the need of reforms to bring forward a
more flexible and uniform procedural fairness under a administrative court system.