natural justice
the 2 basic ideas of natural justice:
(1) that the parties affected by a decision should be given a chance to be heard (audi alteram partem)
(2) that the adjudicator should be unbiased (nemo judex in causa sua) modern administrative law refers to “procedural fairness”
Lord Diplock’s definition - GCHQ
“under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice”
procedural fairness - Ridge
the chief constable dismissed without being first given notice of the charge and an opportunity to be heard (prior to Ridge procedural rights were only in situations where “rights” as opposed to “privileges” were affected and in “judicial” as opposed to “administrative” decisions) - HOL removed these distinctions
justifying procedural fairness
is instrumental to the decision as “one of the virtues of procedurally fair decision-making is that it is liable to result in better decisions
dignity as justice requires a procedure “which pays due respect to person who’s rights are significantly affected by decisions”
demonstrated in Osborn / Moseley
the importance of context in procedural fairness
“the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory and other framework in which it operates”
notice - Doody
“since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer”
the right to know the case against
“notice of a decision is required because the individual concerned must be in a position to challenge the decision in the courts if he / she wishes to do so”
“the rule of law requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected”
consultations - BAPIO
there is no general common law duty to consult & it would be for parliament to introduce such duty
consultations - Plantagenet Alliance
a duty to consult:
(1) if there is a statutory duty to consult
(2) a promise to consult has been made
(3) established a practice to consult
(4) not consulting would give rise to “conspicuous unfairness”
conspicuous unfairness
duty can arise from both statute and established practice - “it was conspicuously unfair not to include those bodies representing their rights and interests within the informal consultation”
statutory duty to consult
legislation may either require (“mandatory”) consultations or give the public authority discretion to hold (“directory”) consultations - determining whether consultation falls under either category is a matter of statutory construction (e.g. shall / must) - failure to comply with a statutory duty to consult will result in the subsequent decision being held void
sadly criteria for consultations - Gunning
(1) consultation must be at a time where proposals are still at a formative stage
(2) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response
(3) adequate time must be given for consideration and response
(4) the product of consultation must be contentiously taken into account in finalising any statutory proposals
specific common law duty - Baker
duty to consult residents of a care home for the elderly before deciding whether to close it based on legitimate expectations
specific common law duty - Coughlan
specific duty arising out of legitimate expectations based on either the nature of the interest affected or past practice of consultation
common law duty to consult applied - LH
a local authority, which consulted widely on the need to close a certain number of day care centres, owes nonetheless a specific duty to the consult with users of individual centres
common law duty to consult applied - Greenpeace
the gov white paper promised a full public consultation before any policy changed on nuclear energy but the court found the consultation process that had taken place was seriously flawed
hearings - Osborn
the requirement depends on the context, but a hearing is required where applicants need to be able to present their case, effectively, particularly where liberty is at stake
reasons
no general common law duty
reasons - ex parte Cunningham
it might be a breach of natural justice not to give reasons in certain circumstances
reasons - Dandy
the refusal to give reasons must be fair and a prisoner has a real interest in understanding how long he would remain in prison and why this period was imposed
in favour of giving reasons - Institute of Dental Surgery
duty to give reasons no longer exceptional depends on factors such as:
the nature of the incident affected (i.e personal liberty)
whether the decision appears absurd - fairness may require reasons so that the recipient may know whether the absurdity is in the legal sense real (& so challengeable) or apparent
reasons & planning - Dover District Council
although there is no general duty to provide reasons, reasons are essential to allow effective supervision by the courts and to allow individuals to challenge the legality of decisions
reasons & other JR grounds - Padfield
if a decision-maker fails to give reasons for a decision, the court may infer that no valid reasons exist
reasons & other JR grounds - Lonrho
“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 has no rational reason for his decision”
