Procedural Unfairness

Decisions and actions of public authorities may be challenged on the basis of procedural impropriety. The procedures may be specified by the statute concerned. They may arise from the rights of natural justice or Convention rights.

Evolving grounds, procedural grounds for challenge imply obligations to act fairly, give reasons, and respect legitimate expectations.

In many cases, statute sets out the requisite procedure. It is a matter of interpretation as to whether the procedure is mandatory or so-called directory. In the latter case, the decision in breach of the procedures is void, whereas in the former case, the decision stands.

Whether or not the provision is mandatory is a matter of interpretation of the relevant statutes in context. Bodies are consulted so that failure to do so, where it is mandatory, may invalidate the decision.

The courts may interpret the obligation to consult in terms of what steps may be taken. Many decisions have been invalidated on the basis that the public authority has not undertaken the requisite consultations required on the true interpretation of the statute.

Courts may interpret the duty to be directory only. In this case, provided the decision is otherwise fair, the failure does not invalidate the decision.

The rules of natural justice are founded on common law. It may be reflected in statute. They reflect the basic principles that decisions should be made in a fair manner.

What is required in the case of an administrative decision may differ from that required in the case of a judicial decision. Judicial review applies.

What is required will depend on the statutory context and nature of the rights affected and circumstances. Greater, more elaborate procedures will be required, the greater the impact and the importance of the rights on the citizen.

Some questions are more judicial or quasi-judicial in nature, whereas others are administrative and discretionary.

Duty to Act Fairly

The duty to act judicially is more appropriate for judicial and quasi-judicial functions, whereas in the context of administrative functions, the obligation is to act fairly. The duty to act fairly will depend on the nature of the rights affected and legitimate expectations that may arise. The duty of fairness is reflected in the European Convention right, Article 6.

The basic principle of natural justice is the rule against bias. There need not be actual demonstrable bias. The appearance of bias or the risk of bias is sufficient. Justice should be done and seem to be done.

If the decision-maker has an outcome and interest in the outcome of the matter, then he ma y be obliged to disqualify himself. Where a judicial matter is involved, the duty is more absolute. The appearance of bias will suffice to disqualify the person hearing the matter. Where the financial interest of the judge is equal to that of other citizens, there is no appearance of bias.

Bias may arise from a range of bases. Bias may arise from any combination of circumstances. It may arise from a particular connection with a party, opinions, politics. The judge is obliged to give effect to the interests of the community as a whole rather than a particular section or group.

Where a reasonable and fair-minded person, knowing the facts, would have reasonable suspicions that the fairness of the trial might be affected, the judge or adjudicator should excuse himself on the basis of possible bias.

Where there is any discernible interest in the outcome of the case, then the judge should always excuse himself. Where there is a possibility of bias in the circumstances such that an independent lay person with knowledge of the facts could not exclude the possibility of bias, then the judge or decision-maker should exclude himself.

The question is whether a fair and informed observer, having considered the facts, would conclude there was a real possibility that the decision-maker was biased. Where a decision-maker or judge has made statements that indicate a bias in relation to the matter.

The right to a fair hearing is a fundamental common law principle applicable to judicial and administrative. The right to a fair trial is guaranteed by Article 6 of the European Convention on Human Rights. The requirement of a fair trial has multiple elements.

It requires that notice be given of the hearing, that the person be given copies of adverse evidence in advance, that he be given the opportunity to respond, that there may be a right to an oral hearing, that he may be entitled to a legal representative, he must be entitled to challenge the other side’s evidence and offer rebutting evidence.

The principle of a fair hearing is a long-established common-law principle and is  an element of natural justice. The same broad principle applies to judicial and administrative decisions. However, the manner in which the principle applies differs. However, both administrative and judicial decisions may affect the property reputation, rights, and privileges of the citizen.

Many cases involve actions impacting on the person’s good name, such as a dismissal from office peremptorily or without hearing or proper hearing. The right to a livelihood, good name, and decisions regarding issuing of licenses and the equivalent authorizations are frequently must be undertaken with substantive and procedural fairness. The requirements of fairness will clearly vary with the circumstances, as to whether the decision is judicial or administrative and the nature of the citizen’s right involved.

An individual who may be affected by a decision is entitled to make representations which are taken into account. There is no automatic right to an oral hearing, but an oral hearing may be required to meet the standards of justice and fairness.

The more serious and far-reaching the impact of the decision, the more likely and more rigorous the requirements of fairness are.

There is a right of fair sight of the other side’s evidence or case. There must be a right to challenge that case before an independent decision-maker.

There may be a right to call witnesses to rebut the case. There is a right to cross-examine the opposition’s case.

The nature of the representations required in the procedure will depend on the circumstances. In many cases, it will suffice. Where the decision is less far-reaching in nature, written representations may suffice. Controversy may arise as to whether or not an oral hearing is required.

There must be a proper hearing of the complaint in the sense that the body must consider all the relevant evidence and contentions before reaching its conclusion. The hearing need not necessarily be an oral hearing in all cases. Provided that the decision-maker achieves that degree of fairness appropriate to their tasks, it is for them to decide how they will proceed. Fairness does not always require an oral hearing. There may not be an inflexible policy, never to have an oral hearing. It may involve a fettering of discretion.

The opportunity to have evidence tested by cross-examination is a matter of discretion. This allows the person affected to test the other side’s evidence. A hearing will generally be required. An independent person should hear the relevant facts and decide based on them.

Legal representation may be required in some contexts be an element of the requirement for fair procedures. There is no general right to legal representation. In administrative and indeed in many judicial hearings, representation need not be legal. It may be undertaken by friends, trade unions, etc.

In some circumstances, there may be a right to have legal representation. Where complex matters are involved involving persons’ key interests such as their livelihood, legal representation may be a right. The more serious the case, the more likely the right to a fair hearing will require legal representation.

A duty to give reasons has developed in recent decades as part of procedural fairness. The rationale is that the person over which basis must be made on  a false or incorrect basis. Giving  reasons may allow the decision to be upheld. Where there is a general duty to give reasons, then if the body does not give reasons, the court may determine that there were no good reasons for the decision.

The decision-maker may be obliged to give a reasoned decision with reference to the evidence. The nature of the case may require reasons, fairness. The more important the matter the more cogent and the detailed the reasons should be.

The judges finding of facts and application of law should be determinable. A straightforward case involving  resolution of the factual dispute, judge, the tribunal may indicate that it believes one party over another. It may choose to summarize the evidence. Where the dispute is one of mixed law and facts, the judge should, why one analysis is preferred over the other or in the case of complex.

The reasons for the decisions must be eligible and adequate that the person reading them considers to understand why the matter was so decided in relation to the principal and important and controversial issues, showing how any issue of law or fact was resolved.

Reasons may be related. The degree of clarity required depends highly on the nature of the issues falling for decision.

The reasoning must not give rise to a substantial out of the weather burden law, for examining some relevant policy or some other important matter or relevant grounds.

A legitimate expectation may be created by a public body in relation to procedures it will follow in making a decision. Members of the public may have a legitimate expectation that those procedures will be adhered to, that accordingly, notwithstanding the strict legal position, the public body may be restrained from — may not adopt a strict legal position.

The issue of legitimate expectations arises in relation to published procedures and published policy and guidelines which have governed the exercise of a particular discretion to date.

Some legitimate expectations are argued by some courts to refer to procedural matters where substantive matters are the subject of unreasonableness rather than legitimate expectation. Other courts have taken a wider view. Where a public authority has issued a promise or adopted a practice, which represents how it proposes to act in a given area, the law would require the promise or practice to be honored unless there is a very good reason not to do so.

A legitimate expectation may arise by reason of assurances given by public officials. Public officials may not fetter their duties by undertaking to act in a particular way where there exists a specific procedure.

Where a court considers that a lawful promise or practice has adduced a legitimate expectation, of a benefit which is substantive and not merely procedural, authority now establishes that,  the court will in a proper case decide whether to frustrate the expectation is so unfair, that to take a new and different course will amount to an abuse of power.

Once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against an overriding interest relied on for the change of policy. Where a public authority gives clear, unambiguous assurances, it may be restrained from going back on them.

Many cases on legitimate expectation involve published statutory guidelines or policy statements or circulars. There may be a legitimate expectation that a policy proposed and published will be adhered to in relevant decision-making practice.