due process - the right to be heard Flashcards
2½ Common Law Rules of Due Process
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The right to be heard
- Audi alteram partem
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The rule against bias
- Nemo iudex in causa sua
½ rule: the duty to give reasons
Cooper v Wandsworth Board of Works (1863)
- Wandsworth Board of Works demolished Mr Cooper’s half-built house, without giving him any warning.
- The Court held that the demolition was unlawful.
Byles J:
‘although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.’
Erle CJ:
‘no man is to be deprived of his property without his having an opportunity of being heard.’
Willes J:
‘A tribunal which is by law invested with power to affect the property of one of Her Majesty’s subjects, is bound to give such subject an opportunity of being heard.’
Rationale
Instrumental arguments
- It helps to produce better decisions: providing a hearing ensures that all the relevant information is known, resulting in a more informed decision.
- It promotes good government and accountability, and it subjects administrative decision-makers to the rule of law.
Non-instrumental arguments
- It is intrinsically valuable for dignitarian reasons: it shows respect for persons.
- It is intrinsically valuable even if it would ‘make no difference’ to the outcome.
Dangers
Procedural protection has two main disadvantages:
- The expense of procedural protection. It costs time and money.
- The risk that procedural requirements may hinder the ability of public authorities to carry out their functions effectively.
The result is a need for proportionate procedural protection—that is, for due process. The court must weigh the reasons for procedural safeguards against these dangers, in order to determine how much process is due.
Judicial or Administrative?
- In the 1950s, the courts began to show less willingness to intervene in administrative decision making on the ground of due process.
- The courts began to emphasise the distinction between judicial or ‘quasi-judicial’ decisions (to which the rules of natural justice apply) and, on the other hand, administrative decisions (to which they do not).
- This was a change in approach—previously, the rules of natural justice had also been applied to administrative decisions, as Cooper shows.
- The distinction led to bizarre results—there would be a right to a hearing before being expelled from a club but no right to a hearing when being refused a license on which one’s livelihood depended.
Ridge v Baldwin [1964]
- A chief constable, who was acquitted of conspiracy to obstruct the course of justice, was dismissed from office without notice of any charge or a hearing.
- The House of Lords held Ridge’s dismissal was void.
- This landmark revived the 19th-century doctrine, and is part of Lord Reid’s liberalisation of judicial review after the post-war period of (arguably) excessive judicial restraint.
- The House of Lords scorched the idea that the rules of natural justice apply only to ‘judicial’ decisions.
R v Secretary of State for the Home Department, ex parte Doody [1994]
(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
(3) 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.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) 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.
Elements of a Fair Hearing
- Disclosure of information (including ‘gisting’)
- An oral hearing
- Openness or confidentiality
- Representation (by a lawyer or other advocate)
- An opportunity to present or challenge evidence
- Reasons for the decision
- A convenient location, and within a reasonable time
- The option of waiving procedures
- Reconsideration of an adverse decision, and/or an appeal, and/or judicial review
A Flexible Approach
When will you have a right to an oral hearing?
- Answer: It depends. (Lloyd v McMahon [1987] AC 625)
When will you have a right to representation?
- Answer: It depends. (Ex parte Hone [1988] AC 379)
When will you have a right to cross-examine?
- Answer: It depends. (Bushell [1981] AC 75)
When will you have a right to consultation?
- Answer: It depends. (Naizi [2008] EWCA Civ 755)
Criticism of Flexibility
Martin Loughlin:
- The courts are not well placed to perform the balancing exercise that the flexible approach requires.
- It creates uncertainty and undermines the rule of law.
- It seems to appeal to some imaginary consensus about what counts as procedural fairness in particular contexts. It suggests that we will know unfairness when we see it.
Beatson LJ:
R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 [67]–[74]
- It might lead to an inappropriate drawing together of procedural and substantive fairness.
- It leads to uncertainty and unpredictability—and to what Sir William Wade called the ‘wilderness of single instances’.
- ‘There is a need for principled guidance which is practical and does not constitute either a procedural straitjacket, a “safe harbour” for longstanding ways of doing things in a particular context, or operate with centripetal force towards an adversarial adjudicative process.’
R v Secretary of State for the Home Department, ex parte Hosenball [1977]
- The Home Secretary ordered Mark Hosenball, a journalist, to be deported on national security grounds, but no evidence was produced.
- Lord Denning: ‘When the public interest requires that information be kept confidential, it may outweigh even the interest in the administration of justice.’
- The courts traditionally show an extreme amount of restraint when the national security card is played. See also Lord Diplock in the GCHQ case: national security is ‘par excellence a non-justiciable question’.
- The courts have since become less deferential.
Closed Material Procedures
- ‘Closed’ evidence is not disclosed to the individual and is heard in secret, without the presence of the individual.
- The government appoints a security-cleared ‘special advocate’, who has access to the closed material, and whose role is to ‘represent’ the individual.
- But the special advocate may not communicate with the individual after seeing the closed material.
- The government can use these procedures in many contexts when it does not want to disclose sensitive information due to national security.
R (Roberts) v Parole Board [2005]
- The Parole Board was concerned that revealing the evidence of an informer would put him at risk.
- The Parole Board used a special advocate system, without express statutory authorisation.
- Under Criminal Justice Act 1991, s 32(5), the Home Secretary made rules allowing the Board to withhold information on various grounds.
- House of Lords (3:2) approved the system: if the Board could lawfully withhold information, the special advocate system was better than nothing.
Dissents from Lord Bingham and Lord Steyn
- The Home Secretary and Parole Board should not be allowed to depart from fundamental values unless the statute expressly authorises it (see e.g. Simms).
- Lord Steyn described the special advocate system as ‘Kafkaesque’.
After the decision, Roberts was sent the secret evidence anonymously. A further Parole Board hearing, at which his counsel could effectively cross-examine, cleared him of the most damaging allegations.
(NB: This is not a national security case.)
Secretary of State for the Home Department v MB [2007]
The House of Lords’ judgment
- The use of special advocates was compatible with the right to a fair hearing—unless, looking at the process as a whole, the procedure involved significant injustice to the individual.
- The majority suggested it would be fair if it would ‘make no difference’ to the outcome.
- Lord Hoffmann (dissenting): the existence of special advocates is sufficient to guarantee procedural fairness in every case.
A v United Kingdom (2009)
The European Court of Human Rights
- National security can be a justification for limiting the information given to the individual.
- But non-disclosure cannot go so far as to deny an individual knowledge of the essence of the case against him—at least where there is a risk of severe consequences.
