Principles Of Fairness Application Example Essay

The Application of the principles of fairness. Example Essay

Question

The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. Explain and Discuss.

Introduction

In the tangled web of British administrative law, not only does the court concern itself with the ultimate decision made by a public authority, but also with the procedure with which that decision is made. This is the doctrine of procedural fairness; it rests on the long-standing concept of natural justice, noted in ex parte McCarthy as meaning “justice must not only be done, but be seen to be done”^[1]. To this end, British common law has developed numerous requirements often applicable to decision-makers. Often, they must give reasons for their decisions^[2], allow for consultation before such decisions are made^[3], and (in more adversarial settings) allow oral hearings in one’s defence^[4]. However, such requirements cannot reasonably apply universally; as Mashaw notes, requirements like reason giving are burdensome on public authorities^[5]. It can be argued that the doctrine of procedural fairness has developed with this in mind. As epitomised by the case of ex parte Doody, the requirements of fairness have largely developed to apply contextually, with some scenarios requiring greater levels of procedural protection than others^[6].

Though the doctrine of procedural fairness has existed for some time, review on grounds of fairness had previously been a somewhat confusing affair. As observed in the case of Nakkuda Ali v Jayaratne^[7], judges adopted an “analytic” approach^[8], in which they would determine whether the decision maker had made a ‘judicial’ or ‘administrative’ decision. In their view, judicial decisions attracted greater procedural protection under the law. In contrast, administrative decisions were not subject to such protection, allowing authorities to experiment with other forms of social ordering (as Harlow and Rawlings point out)^[9]. However, determining what constitutes a judicial decision proved to be extremely difficult, and, as Macdonald notes, a more activist approach to procedural review was demanded^[10].

The case of Ridge v Baldwin proved to be a milestone; it departed from previous case law, installing requirements of procedural fairness dependant on the type of power being exercised and its effect on the individual concerned^[11]. The breadth of such an approach was clarified in the later case of ex parte Doody^[12], from which the quotation contained in the question is derived. In Doody, what fairness demanded (according to Lord Mustill^[13]) was to be established via an examination of the case in all its aspects; and the ultimate decision was to be an intuitive judgment. This reliance on intuition means a case-by-case analysis is the best way of understanding the contextual approach in action, and the cases of McInnes and ex parte Wilson serve as good examples. In McInnes, it was held that when his application for a boxing manager license was rejected, the applicant was not afforded a great deal of procedural fairness; ultimately, the authority was not obliged to give him reasons why he was rejected^[15]. In contrast, the Court in Wilson held that by imposing a discretionary life sentence tariff on a prisoner, he was entitled to know of reasons why he was refused parole previously. If decided otherwise, he would be unable to adequately prepare for his next parole hearing^[16].

The breadth of the contextual approach extends far beyond an assessment of the adverse effect on the individual; indeed, even in instances where a person faces extremely adverse conditions, little procedural protection can be afforded. The topic of national (and international) security is of particular relevance here, with many British cases indicating that the need to install procedural fairness is substantially diminished where matters of security are concerned. The rationale for such an approach is of constitutional importance; the British judiciary has historically paid great deference to government decisions on national security, a field in which they are largely considered most competent to act^[17]. The classic example of judicial deference on procedural matters is demonstrated by the World War II case of Liversidge v Anderson^[18]. Even in modern times, the courts have expressed hesitancy to encroach on this very politically charged topic^[19]. As a result, the contextual approach in this area is characterised as affording great weight to the authority’s opinion, tempered only by the minimum requirements of fairness dictated by the right to a fair trial, under Article 6 of the European Convention on Human Rights^[20].

For instance, in mitigating the possibility of terrorist attacks, the UK have utilised measures to restrict the liberty of suspects; first by imposing Control Orders, now replaced by TPIMs. The regimes make use of curfews, electronic tagging, and restricting access to particular locations- in other words, significant deprivations of an individual’s liberty. In AF^[21] , it was held that procedural fairness required these individuals are entitled to know the ‘core minimum’ of the case against them, to allow them to give adequate instructions in their defence. Such an approach also applies in refusing re-admission into the UK on national security grounds. As held in in ZZ, just the “essence” of the reasons for refusal was required to satisfy procedural fairness^[22]. As a result, in Solum’s view, the overall standard of procedural fairness in national security cases has been “sacrificed on the altar of substantive advantage”^[23]. Ultimately however, this sacrifice has been made with regards to the context in question.

The breadth of the contextual approach only stands to become wider in the national security context, with different levels of procedural requirements emerging depending on the severity of the national security case in question. For instance, though the defendant in AF was entitled to know the core minimum of the case against him, the later case of Tariq demonstrates how even the national security context can be divided into sub-categories. The Appellant, an immigration officer, had his security clearance revoked on the basis that he was related to a convicted terrorist^[24]. He disputed this measure, and, when the matter was taken to an employment tribunal, a Closed Material Procedure was implemented^[25]. This barred the Appellant and his representatives from proceedings, on national security grounds. The Supreme Court held that the Appellant was not even entitled to know the essence of the case being made against him in closed proceedings. It was held that this was because the case was an employment matter, not the prospect of liberty-diminishing control orders as in AF. In a similar vein, the case of Bank Mellat continues the trend^[26]. Upon analysis of both AF and ZZ, the court held that the UK government were obliged to disclose the information that prompted them to freeze the bank’s UK funds. This would provide them with means to respond to the case against them, a right found under Article 6 of the ECHR. The information relied on, as it transpired, was that by virtue of Iran possessing a nuclear programme, it was in the interests of security to prevent the bank from continuing its activities, which may be helping fund such a programme.

There is an often-forgotten second requirement for natural justice (and thus procedural fairness); that of the need for impartiality. The case of Porter v Magill sets the test for the appearance of bias. The case held that if, according to a fair minded and informed observer, there is a real possibility of bias, the decision of the authority must be set aside^[27]. However, the need to evaluate from the perspective of a “fair minded and informed observer” has generated difficulties. As Havers and Henderson claim, though this principled approach is desirable, recent decisions suggest that findings of apparent bias are turning on individual facts^[29]. For example, in the case of E v Merchant Taylors School, the parents of a boy who was expelled from school complained that a member of the board of governors, responsible for the decision, was friends with the headmaster^[30]. The appeal was dismissed on the basis that the ‘professionalism’ of the member would have overridden any possible bias in this scenario. However, in the same year, the case of R (Primary Health Investment Properties Ltd) v Secretary of State for Health did not attach similar importance to the existence of ‘professionalism’ in the context of the running of GP surgeries^[31]. As a result, Harlow and Rawlings note, “the development is again shot through with discretion in the form of…variable intensity of review”^[32]. Therefore, like other requirements of procedural fairness, a contextual approach to impartiality review is evident. However, unlike the others, this does not seem to have come about intentionally, but rather, by virtue of an underdeveloped doctrine.

There is, however, one particular requirement of procedural fairness that has not been subject to the contextual approach; the requirement of consultation. In R (Luton BC) v Secretary of State for Education (a case where a funding programme for schools had been cancelled) it was held that no general duty to consult existed^[33], with procedural protection only being engaged upon government agreement to hold a consultation^[34]. On the one hand, a contextual approach to consultation is arguably required; as the European Commission has pointed out, consultation allows the public greater access into the policymaking process of government^[35]. However, perhaps the lack of development is somewhat justified; frivolous litigation is often carried out on the grounds of lack of consultation, hampering government activity. As a result, a contextual approach has yet to materialise in this area.

The lack of a general duty to consult provides an insight into the wider controversy surrounding procedural review in recent years – and a significant opposition has been built around it. Indeed, although procedural fairness has been described as affording individuals “a peculiar kind of participation in the decision”^[36], sometimes their participation causes more harm than good. For example, in ex parte Institute of Dental Surgery, Sedley J pointed to the fact that requiring reasons calls for expression of what may be an ineffable value judgment^[37]. Under the previous coalition government, David Cameron expressed his disdain for lengthy consultation procedures, stating “we are going further, saying: if there is no need for a consultation, then don’t have one”^[38]. Indeed, it was for criticisms like these that a culture of secrecy was long favoured by government, as noted in Nat Bell Liquors^[39], for it simply made the job of governance easier and more efficient. Underpinning all the dissent is the fact that, in recent years, applications for judicial review have exploded in number, and become far less meritorious. Samuels notes that “unmeritorious cases are brought, with no chance of success, in order to delay the implementation of public decisions and to gain publicity. Minor technical points are taken… judicial review has been seen as a political tool and blocking device”^[40]. As a result, a general tightening up of the system is required, starting with the approach to procedural fairness. S.84 of the Criminal Justice and Courts Act 2015 aims to clamp down on the provision of procedural fairness. The clause obliges the Court to refuse to grant leave or remedy if the outcome for the Appellant would not have been substantially different if the conduct complained of had not occurred^[41], arguably serving to dispose of frivolous cases.

In conclusion, despite the fact that procedural review burdens the administrative process, a contextual approach to procedural fairness has been well and truly established in British administrative law. Indeed, if any fairness is to be applied, such a system is somewhat compulsory. What fairness requires will always depend on the facts of the case in question, and as such, a weighing-up of the competing factors (a “judicial balancing” according to Mashaw^[42]) will have to take place. However, perhaps further tweaking of the doctrine is needed. As the advent of the Criminal Justice and Courts Act suggests, the exercise of procedural review (in its totality) is taking matters too far, with the more trivial cases arguably requiring no procedural protection whatsoever. However, the Act has only been in force for a few months; the precise effect it will have on procedural review is yet to be established.

Footnotes

^[1] R v Sussex Justices, ex parte McCarthy [1924], 1 KB 256

^[2] R v Civil Service Appeal Board, ex parte Cunningham [1991], 4 All ER 310

^[3] R v North and East Devon Authority, ex parte Coughlan [2001], 2 QB 213

^[4] R (Osborn) v Parole Board [2013], UKSC 61

^[5] Jerry Mashaw, “Small Things Like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative State”, Fordham Law Review [2001] 70(1), p.25

^[6] R v Secretary of State for the Home Department, ex parte Doody [1994], 1 AC 531

^[7] Nakkuda Ali v Jayaratne [1951], AC 66

^[8] See Carol Harlow and Richard Rawlings, “Law and Administration” (3^rd Edition, Cambridge University Press 2009), p.622

^[9] Ibid

^[10] R. Macdonald, “Judicial Review and Procedural Fairness in Administrative Law I” [1980], 25 McGill Law Journal 520, p.534

^[11] Ridge v Baldwin [1964], AC 40

^[12] R v Secretary of State for the Home Department, ex parte Doody [1994], 1 AC 531

^[13] ibid 560

^[14] R v Parole Board for England and Wales ex parte Wilson [1992], 2 QB 740

^[15] McInnes v Onslow Fane [1978], 1 WLR 1520

^[16] R v Parole Board for England and Wales ex parte Wilson [1992], 2 QB 740

^[17] Jonathan Sumption, “Judicial and Political Decision Making: The Uncertain Boundary”, 35^th F.A Mann Lecture p.20, 8.11.2011 Click here to read the full article accessed 20^th June 2015

^[18] Liversidge v Anderson [1941], UKHL 1

^[19] A v Secretary of State for the Home Department [2004], UKHL 56

^[20] European Convention on Human Rights 1950, Article 6

^[21] Secretary of State for the Home Department v AF & Ors [2009], UKHL 28

^[22] ZZ v Secretary of State for the Home Department [2013], EUECJ C-300/11

^[23] Lawrence Solum, “Procedural Justice” [2004], Southern California Law Review 78, 182

^[24] Tariq v Home Office [2011], UKSC 35

^[25]As permitted by the Justice and Security Act 2013

^[26] Bank Mellat v Her Majesty’s Treasury [2013], UKSC 38

^[27] Porter v Magill [2001], UKHL 67

^[28] Porter v Magill [2001], UKHL 103

^[29] Phillip Havers and Alasdair Henderson “Recent Developments (and Problems) in the Law on Bias” [2011], 16 Judicial Review 5

^[30] E v Merchant Taylors School [2009] EWCA Civ 1050

^[31]R (Primary Health Investment Properties Ltd) v Secretary of State for Health [2009], EWHC 519 (Admin)

^[32] Carol Harlow and Richard Rawlings, “Law and Administration”, (2009, 3^rd Edition Cambridge University Press), p.653

^[33] R (Luton BC) v Secretary of State for Education [2011] EWHC 217 (Admin)

^[34] R v North and East Devon Authority, ex parte Coughlan [2001], 2 QB 213

^[35] European Commission, “White Paper on European Governance COM” [2001], 428 (Brussels, 25/7/2001)

^[36] Lon Fuller, “The Forms and Limits of Adjudication” [1978], 92 Harvard Law Review 353

^[37] R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242

^[38] David Cameron, CBI Conference 19.11.2012, Click here to read the full article accessed 20^th June 2015

^[39] R v Nat Bell Liquors [1922] UKPC 35

^[40] Alec Samuels, “Judicial Review: The New Law: The Criminal Justice and Courts Act 2015 Chapter 2”, [2015] Journal of Planning and Environment Law 754

^[41] Criminal Justice and Courts Act 2015, S.84

^[42] Jerry Mashaw, “Due Process in the Administrative State” (1^st Edition, Yale University Press 1985), p.155