Procedural Fairness

As exemplified in many important judicial decisions, the law on procedural fairness in

administrative decision-making serves to enforce quality public administration. Discuss.
Loughlin’s activist informalist model advances this notion that, undoubtedly, reliable and
efficient public administration stems from the interplay among the rules on procedural
fairness. This essay, thereby, will attempt to enumerate the court's contribution in upholding
a stable system of public administration which is indeed a consequence of the courts' flexible
attitude towards the term ‘fairness’. Courts respect the substantive rules on procedural
fairness and their approach expands to three areas; the right to fair hearing, the duty to give
reasons, and the rules against bias.
This essay will also applaud the courts approach - which is not only efficient but also
complements and reflects the UK's judicial system.

The right to fair hearing, otherwise known as the audi alteram principle, provides a good
entrance to this discussion. Rooted in common law, this principle was developed by the case
of Cooper v Wandsworth 1863 whereby Willes J recognized that every individual's/citizen's
opportunity to freely speak and be heard is the plainest principle of justice. However, as
observed in the case of Ridge v Baldwin, this law has certainly evolved and branched away
from its initial standing. Lord Reed in the case of Osborn v Parole Board 2013 proposes the
three reasons for imposing the audi alteram principle: a better decision, avoidance of a
sense of injustice, and the rule of law. The better decision necessitates that prior to the
courts giving a fair and equal decision, the decisive power should be exposed to clear facts
and evidence from both parties, which, in turn, are also precisely tested. The avoidance of a
sense of injustice reasoning, according to Lord Reed, should institute the reasons for the
injustice and the following procedure should justly empathize with the affected party.
Moreover, Lord Reed also quotes Jeremy Waldron’s philosophy: Humans must be governed
with dignity and the law must protect that dignity. Another quotation that advances his
opinion is found in the case of Dr Bentley 1723 where Fortescue J stated that even God
gave Adam permission to give his defense before he was punished - words that also find
resonance with the likes of Lord Hoffman who quotes them in the case of AF(no.3).
Therefore, the fundamental undertone in this premise stands to be the protection of human
dignity and respect. Lastly, the rule of law reasoning finds a direct connection between the
decision maker's compliance to people by listening to them and their fulfillment of standards
of upholding the rule of law.
There are two divisions of procedural fairness, as noted by the jurist Dennis Galligan, that
lead to better decision making in all cases; instrumental and non-instrumental - another idea
applauded by Lord Reed as he agreed to this right protecting human dignity and resulting in
better decisions.

The utility of the principle of audi alteram, however, is only established by the fulfillment of
the following four requirements highlighted in numerous cases: availability of accusations,
right to make representations, right to legal representation and the right to cross examine.
The availability of accusations or right to have notice of accusations demands that the
accused person must be aware of the accusations against them and the evidence. The
delivery of appropriate evidence and full disclosure, along with allowing the accused to state
the claim as false, improper or a biased accusation, are all aspects needed to be ensured by
the public authority in order to fulfill its role and uphold the rule of law. In the case of Benaim
and Khaida, the casino owners, whose gaming license was at stake, were entitled to know
the accusations levied against them, as was the right of the bank in the case of Bank Mellat
v HM Treasury. According to Endicott, costs must also be considered along with this
procedure - a fact inherently based on case law. In conclusion, defense, upholding the rule
of law, are among the many practical purposes consequential to the right to inform of
accusations.

Addressing a more elaborate requirement that is supported with substantive case law, with
special focus on oral hearings, let's narrow down our focus to the right of hearing. The fact
that oral hearings are not an absolute right was presented in the case of Lloyd v McMahon
1987, but if the idea of fairness resided in their allowance, the courts were to implement
them. In this case, however, an elaborate written exchange provided an adequate
opportunity for the accused to advance their case and reach a satisfactory conclusion,
thereby nullifying the need for a hearing. The case of R v Law Society 2004 followed a
similar pattern where although an oral hearing wasn't imposed, all means were put at the
disposal of the accused solicitor to present his case.
Nevertheless, the case R (on the application of Smith) v Parole Board 2005, is at variance
with the aforementioned cases as the courts declared the rule disallowing prisoners oral
hearings to be unfair and contradictory to the achievement of a just outcome.

While there are various interpretations of the courts on the third requirement, right to legal
representation, generally the costs incurred are considered a hinderance or a disadvantage
that diminishes the significance of legal representation in pursuit of a finer result for the
applicant. Home and McCarton 1998 supports this observation as it viewed the duty given to
the accused to be potential waste of resources and contrary to public interest.

Finally, Lord Reed views the fourth and final requirement, the right to cross-examine, as not
an absolute necessity. The case of Bushell v Sec of State 1980 challenges this perspective
by considering the right to cross-examine imperative when presented with controversial or
previously undisclosed evidence. Certainly, the concept of procedural fairness and efficient
administration both stand to fundamentally benefit from cross examination. Even more so,
such procedures foster a mutual respect between the accused and the public administration
departments when based on cooperation among the two. Still, the issue of costs of
resources and their potential wastage is a troubling concern as raised by Endicott again, but
he also sheds equal emphasis on a fair process urging the courts to strike a balance
between the two aspects and consequently make more informed decisions.
Moreover, an examination of the requirements of procedural fairness would be incomplete
without emphasizing another crucial principle - the duty to provide reasons. Under common
law, this duty is not an absolute right or a general obligation, but it can be triggered under
specific circumstances, as established in the Dental Surgery case. In the case of Doody, it
was clarified that if the nature of the decision necessitates an explanation, then reasons
should be given. However, this requirement has also faced criticism for increasing costs and
burdens. Nonetheless, it is widely believed that authorities should justify their actions to
citizens for the purpose of promoting good public administration. Elliot argues in Asha
Foundation that this duty must be enforced when necessary, based on the nature of the
case, and the reasons provided should be genuine rather than superficial. There is ongoing
debate about which cases warrant a more significant requirement for giving reasons and
which do not. Elliot responds to these criticisms by stating that a minimal level of certainty is
acceptable.

Lastly, the test for bias, as illustrated in the case of Porter v Magilla, examines whether a
fair-minded and informed observer would conclude that there is a real possibility of bias
within the tribunal. This test is subjective and varies depending on the specific circumstances
of each case, as established by the cases of Runa Begum and Brooke.

However, the result of this test is that even minimal familiarity of a judge with individuals
involved in a claim could be deemed as bias. This raises concerns about whether the
balance has been appropriately struck for the sake of administrative well-being. Artill argues
that the courts too readily defer the determination of bias to the informed observer, which
closely resembles the Gough test focused on the courts' perspective. Harver and Henderson
criticize the test as "unrealistic" due to the high level of detail attributed to a reasonable
person. They believe that the courts have failed to devise an appropriate test, rendering the
current test problematic.

In conclusion, it can be observed that the courts have made sincere efforts to uphold the
principle of procedural fairness and have worked towards promoting good administrative
decision-making to the best of their abilities. Although there are instances where the
protection of procedural fairness may impose additional burdens, such measures are
justified based on the theory of balancing competing interests.