INTRODUCTION
[7.01] This chapter examines procedural impropriety as a ground for judicial review. Decisions and acts may be challenged on this ground where the decision-maker has: (a) failed to observe procedural requirements that are laid down in the legislation that grants its power of decision;[1406] (b) failed to observe the common law rules of fairness (viz the �right to a hearing’ and the �rule against bias’);[1407] or (c) failed to act in accordance with the minimum procedural guarantees contained in Article 6 ECHR (other Articles of the ECHR may also impose obligations).[1408] The judicial approach to arguments made with reference to these overlapping categories is heavily dependent on the legal and factual context to any given dispute, and questions can arise about how to interpret a particular legislative provision, about the relationship between legislation and the common law, about the content of the common law requirements of fairness relative to an individual’s specific circumstances, and about whether Article 6 ECHR is engaged in a dispute.
The corresponding case law has emphasised that the demands of proÂcedural propriety are not â€?engraved on tablets of stone’[1409] and that the development and application of the law should remain context-sensitive and open to adaptation.[1410] This chapter thus identifies the interpretive approaches and general principles that guide the courts when deciding whether a decision is tainted by procedural impropriety and, if so, what remedy (if any) should issue.[1411] It also considers the nature of the overlap between the various categories of impropriety and, in particular, how Article 6 ECHR (among others) informs developments in the common law.[7.02] The chapter begins with a definitional section that notes the purposes of the ground of procedural impropriety and which then maps the relationship between statute law and the common law; outlines the reach of the common law rules of fairness; and identifies when Article 6 ECHR is engaged by decision-making processes.
There next follow three sections that consider, in turn, judicial approaches to procedural requireÂments in statute, the right to a hearing, and the rule against bias (consideration of the ECHR is integrated into each of these sections). The conclusion provides a summary of the central points made.[7.03] Two further points should be made by way of introduction. The first concerns the chapter’s use of the term â€?fairness’, as opposed to the term â€?natural justice’, which has, at least historically, been synonymous with the common law right to a hearing (audi alteram partem) and the rule against bias (nemo judex in causa sua). The term â€?fairness’ is preferred simply because case law has increasingly used it to describe the obligations that can be imposed on a wide-range of decision-makers that includes the judicial and the administrative. Although the content of the rules of â€?fairness’ will often be no different from that of â€?natural justice’ (the terms are in that sense interchangeÂable), the word â€?justice’ arguably corresponds more to a time when the common law rules were taken to apply only to judicial decision-makers or those decision-makers who were making determinations about an individual’s rights.[1412] The law has, however, since moved far beyond distinctions between judicial and other decision-makers, and the duty to act fairly[1413] now potentially applies whenever â€?(anyone) decides anything’[1414] (see [7.09]). The chapter thus uses the term â€?fairness’ merely because it better reflects the fact that the common law rules may be of application notwithstanding the nature of the deciÂsion-maker or the decision at hand. It is, however, ultimately only a label that is, in terms of content, essentially indistinguishable from natural justice.
[7.04] The second point concerns the Charter of Fundamental Rights of the European Union.[1415] While the focus of this chapter is very much on statute law, the common law, and Article 6 ECHR, it is to be noted that the Charter may also be relevant where cases arise wholly or partly under the European Communities Act 1972.
In terms of proceÂdural fairness, the most prominent provision is Article 47 of the Charter, which guarantees both the right to an effective remedy before a court and the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.[1416] Article 47 of the Charter has since been said to have a broader reach than Article 6 ECHR, as it does not link its procedural protections to determinations in respect of civil rights and obligations or criminal charges (on which, in relation to Article 6 ECHR, see [7.15]-[7.17]).[1417] However, to the extent that this suggests that Article 47 may offer superior standards of protection to individuals—its right to an effective remedy before a court also goes beyond the equivalent right in Article 13 ECHR, which it is not a part of domestic law under Schedule 1 to the Human Rights Act 1998[1418]—Article 47 will apply only where a public authority is implementing EU law.14 It should moreover be emphasised that, where Article 47 of the Charter overlaps with Article 6 ECHR on the facts of a case, â€?the meaning and scope of [Article 47] shall be the same’ as Article 6 ECHR, albeit that this â€?shall not prevent [EU] law providing more extensive protection’.15