UNIVERSITY OF JAFFNA

FACULTY OF ARTS

DEPARTMENT OF LAW

ADMINISTRATIVE LAW (ALALC 31014)

ASSIGNMENT - 02

2019/L/057

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 ABBREVIATION

EC – European Convention

ECHR – European Convention on Human Rights

HOL – House of Lords

NJ – Natural Justice

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 INTRODUCTION

"Administrative law may be described as those rules which are recognized by the
court as law and which relate to regulate the administration of government".

-Garner -1

So, PNJ in the fundamental rules of procedure are the basic foundation of a good
administrative setup in any county. When considering the history of NJ, it is derived from
the word of "Jus Natural" of Roman law. Later, it is accepted by Common law also.

Now it has become the essence of any judicial system. Also it can be recognized as
backbone of law and justice. The idea that everyone has a right to fair treatment and
shouldn't be subjected to arbitrary or unjust treatment is at the heart of the concept of
NJ. The common law recognized two core concepts as principles.

1. Rule against bias (Nemo juex Causa Sua)

2. Right to fair hearing (Audi Alteram partem)

When coming to the rationales of NJ, two rationales are consisted as

1. Instrumental rationale
2. Non-instrumental rationale

These rationales have different intellectual roots and reflect different purposes. So the
central thesis of my report to analyze, what are meant by instrumental and non-
instrumental rationales, how both rationales pervade the procedural
requirements that law imposes on public authorities, which one is considered as
preferable one among of these two and what is the justification behind that.

1SRD LAW NOTES, “Important definitions for Administrative Law”, (16th February 2021),
https://www.srdlawnotes.com/2019/01/important-definitions-of-administrative.html?m=1 Accessed on
23rd June 2023

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NJ requires that a person receive a fair and unbiased hearing before a decision is made
that negatively affect them. That means, it purports to prevent miscarriages of justice. So
this concept is existed because of two rationales. They are;

1. Instrumental rationale
2. Non-instrumental rationale

INSTRUMENTAL RATIONALE

Simply, according to instrumental perspective, it looks NJ as a tool to use for achieving

the end goal. That’s meant, this rationale puts more emphasis on the methods regarding
decision making process that are most effective for achieving a outcome irrespective of
other aspects, such as morality or values, unless they have an impact on the effectiveness
of the action.

According to Paul Craig, instrumental rational indicates connection between the right
to hearing principle and correctness of the outcome.2 Therefore decision making
process is desired to be effectiveness and through that can achieve end goal.

Under these hearing principle, giving opportunity to people to express their views is
expected better outcome when making the decision. Therefore, Liventhal opinionated
this hearing right can be increased the probability of favorable outcome or from
perspectives of Thibaut & Walker, can be an equitable outcome.

Hart and Joseph Raz declares that these are guideline ideas for how to best use the law
to regulate behavior and they made “instrumental objection” to the morality of law3.

Among scholars who favors this, as demonstrated by Galligan, when a person's case is
handled in line with authoritative criteria, processes are fair and provide fair results.
Accordingly, decision making process doesn’t have momentous evident intrinsic value
unless it requires that and it isn’t connected with fair treatment. They have gained a

2Paul Craig, Administrative law (9th edn. Sweet and Maxwell, 2021)
3MARK J. BENNETT, “HART AND RAZ ON THE NON-INSTRUMENTAL MORAL VALUE OF THE RULE OF
LAW: A RECONSIDERATION”,(2011), Law and Philosophy, https://www.jstor.org/stable/41487002
Accessed on 24th June 2023

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position in our system by assisting in maintaining standards by merely working with
rules. That’s meant, they are merely functioning regulations rather than values and
morals. Fundamentally, the achievement of societal objectives justifies fair
procedure. The proponents of the dignity thesis undervalue the significance of precise
results.

According to that, instrumental rationale means a pursuit of any means necessary to

achieve a specific end. That is, only the end is really matters.

NON-INSTRUMENTAL RATIONALE

According to perspective of intrinsic rationale, NJ must exist because it is consisted

with fundamental moral value. That is, the rights that are reflected under NJ, must be
protected through the process as inherent rights and dignity of being human. It starts by
looking at the legal relations between private parties and public authorities on a
transnational scale. This illustrates the different in which the human dignity affects the
standards of procedural fairness of law. Human dignity is the guiding principle in the
design and evaluation of procedures. Through this, it is conferred fair hearing between
citizen and official because it focuses inherent rights, dignity and respect rather
than other things. Giving reasons is very dignified. So, based on this rationale, the main
goal of NJ is to make possible to people to participate the decision making process. That
is, giving opportunity to genuinely participation such as giving reasons (fair hearing
rights), considering values is the process which is established to protect and respect to
rights and dignity.

Galligan also expressed his concern in this regard. He states that, but fair procedures are
a means to fair treatment and they are significant only because the person is
acknowledged as a moral agent serving of respect and dignity.

Lon L. Fuller is the person who discussed about “internal morality of law” by affirming
the non-instrumental moral value of conformity to the principles of legality. According to

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his opinion, law is inevitable connect with morality. That’s mean, decision making process
is also implemented by considering morals and values.

According to these two, it’s clear that there is a difference between this. In instrumental,
it is mainly focused on the outcome of the procedure. In contrast to this, intrinsic rationale
is mainly focused on the values and inherent right of being human.

As stated above, even the scholars have divided their views on these two rationales and
certain scholars provide arguments in favor of an intermediate position between these
two. Lind and Tyler pointed out that, entire spectrum of fairness procedure is based on
both instrumental and non-instrumental, group value interests.

RATIONALES PERVADE THE PROCEDURAL REQUIREMENTS THAT LAW IMPOSES

ON PUBLIC AUTHORITIES, PREFERABLE ONE AMONG OF THESE TWO AND THE
JUSTIFICATION OF BEHIND THAT

In the case of R V. Parole Board4 HOL was asked whether the legal procedure for
pardoning even the vilest criminals should prevail transparent and consistent with NJ
under domestic law and/or the EC. The case decision was that decision making process
has to act with procedural fairness and has to give opportunity to criminals to make
arguments. Accordingly, the court emphasized that “a procedure that involves
significant injustice is unlawful”. Procedural fairness reflects the intrinsic rationale.

In Osborn v Parole Board5 case, the parole board didn’t serve the opportunity to
prisoner to give oral parole hearing. He was allowed to give only written submission even
he was illiterate. However he could be successful in this case. In this case, they consider
just hearing right irrelevant of whether it is fair hearing right or not and favorable
outcome. Actually, this case constituted lack of intrinsic aspect of fair procedure. If it
comes to better outcome even considering fair procedure, this decision will be a good
example of establishment of NJ.

4 R (Roberts) V. Parole Board UKHL 45

5 Osborn v Parole Board [2013] UKSC 61

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Soldiers are compelled to go to Londonderry to give evidence even they have reasonable
grounds for fearing their lives if they go in R V. Lord Savillle of Newdigate6case. They
showed that right to life7 is infringed. That means, they attempted to get better outcome
without concerning fair procedure. So court will ask to act fairly not only with parties to
a dispute or toward outcome but also toward persons affected by the outcome.
Nevertheless, the administrative court gave decision by complying with right and fair
procedure. That is, better outcome cannot carry out without fair procedure.

According to cases of R (Bokrosova) v Lambeth8 and R (Wet Finishing Works Ltd) v

Taunton Deane9 when making decision, public authority failed to properly consult
affected parties. The case of R (Holborn Studios Ltd) v Hackney10 is failed to allow an
affected party to make proper representations. That is, through failure of protection of
inherent right of the parties, not only the procedure fairness affects but components of
the hearing rights and correctness also affect.

Regarding the fairness procedure, in Articles 5 and 6 of Human Rights Act11 and
ECHR12 give legal force to the procedural safeguards.

According to that, in my perspective, the procedure cannot be gone on instrumental way

alone. Fairness of procedure that consists with inherent rights must merge. Because
instrumental rationale only focused on the efficiency of the outcome not on rights,
believes. That is threat to the freedom of people. Max Web also equaled this efficiency to
being trapped in a cage. That is, society doesn’t like to limit to a confined a frame like cage
morally. Nevertheless, as explained above cases and opinions of scholars, instrumental
rationale is still prevailed as intrinsic rationale. The better way is that through fair
procedure favorable outcome is achieved by reflecting actual meaning of NJ. That is
achieving the end goal by concerning morals, values and rights.

6 R V. Lord Saville of Newdigate (2002) I WLR 1249

7
Human Rights Act 1998 of Article 2
8 R (Bokrosova) v Lambeth LBC [2015] EWHC 3386
9 R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837
10 R (Holborn Studios Ltd) v Hackney LBC [2017] EWHC 2823
11 Human Rights Act 1998 Article 5 and 6

12 European Convention on Human Rights 1950

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 CONCLUSION

According to that, both rationales has different views on their purposes. But no matter
what the following rationale, ultimate purpose is establishment of NJ. There, better way
have to be chosen. Under instrumental rationale, when making decisions, it reaches a
verdict that is consisted with law while intrinsic rationale ensures that both parties are
heard and treated fairly. Lord Philips also opinioned that it is not possible to make clear
distinction between fair procedure and the procedure that is looked at fair outcome. So,
preferable on is the middle ground between of these. Therefore, it is important to make
the balance between these two and within that fair outcome might be a result of fair
procedure.

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Bibliography
Cases
 R (Bokrosova) v Lambeth LBC [2015] EWHC 3386
 R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837
 R (Holborn Studios Ltd) v Hackney LBC [2017] EWHC 2823
 R (Roberts) V. Parole Board UKHL 45
 R V. Lord Saville of Newdigate (2002) I WLR 1249
 Osborn v Parole Board [2013] UKSC 61

Statues and Acts

 European Convention on Human Rights 1950
 Human Rights Act 1998
Books
 Administrative Law Open University Book
 Paul Craig, Administrative law (9th edn. Sweet and Maxwell, 2021)
Journal Articles
 E. Allan Lind, “Voice, Control, and Procedural Justice: Instrumental and Non-
instrumental Concerns in Fairness Judgments”, Journal of Personality and Social
Psychology, (1990)
 Paul Gerber, “Convicted Murders lose their Human Rights: Roberts v Parole
Board”, Bond Law Review,(2005)
 The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern
Law Review Limited, “Why Fair Procedures Always Make a Difference”, The
Modern Law Review, (2011)
Online Journals
 Chief Justice Robert S French, “Procedural Fairness – Indispensable to Justice?”,
Sir Anthony Mason Lecture The University of Melbourne Law School Law
Students' Society,(2010),
https://www.hcourt.gov.au/assets/publications/speeches/current-
justices/frenchcj/frenchcj07oct10.pdf Accessed on 25th June 2023
 MARK J. BENNETT, “HART AND RAZ ON THE NON-INSTRUMENTAL MORAL
VALUE OF THE RULE OF LAW: A RECONSIDERATION”,(2011), Law and
Philosophy, https://www.jstor.org/stable/41487002 Accessed on 24th June
2023
Websites
 CASEMINE, “LORD SAVILLE OF NEWDIGATE & AMP; ORS V WIDGERY SOLDIERS
& AMP; ORS”, (19th December 2001),
https://www.casemine.com/judgement/uk/5a8ff7ae60d03e7f57eb127f
Accessed on 25th June 2023

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  iPleaders, "Principles of Natural Justice", (12th June
2019)https://blog.ipleaders.in/natural-justice/?amp=1 Accessed on 24 Juneth

2023
 JSTOR, “HART AND RAZ ON THE NON-INSTRUMENTAL MORAL VALUE OF THE RULE
OF LAW: A RECONSIDERATION”, (Springer, 5th September 2011)
https://www.jstor.org/stable/41487002 Accessed on 23rd June 2023
 Oxbridge Notes, “Fair Procedure Notes”,
https://www.oxbridgenotes.co.uk/revision_notes/law-administrative-
law/samples/fair-procedures Accessed on 25th June 2023
 Study.com, “Instrumental Rationality Overview & Examples”,
https://study.com/learn/lesson/instrumental-rationality-overview-
examples.html Accessed on 23rd June 2023
 The SUPREME COURT, “R (on the application of Pearce and another)
(Respondents) v Parole Board for England and Wales (Appellant)”,(5th April 2023)
https://www.supremecourt.uk/watch/uksc-2022-0052/judgment.html
Accessed on 25th June 2023

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