SOME DEFINITIONAL POINTS
[7.05] The ground of procedural impropriety performs a number of functions in terms of moderating the relationship between decision-makers and individuals. In the first instance, it performs a basic democratic function in the sense of requiring that those who will be affected by a decision are able to participate in the decision-making process through, for instance, the making of representations at a hearing.16 While the extent of any participation will be determined by the overall context to the decision (see [7.11]Â
[7.12] ), the requirement that individuals be given a hearing is consonant with the understanding that the power of decision should not be exercised arbitrarily and without any consideration of the opinions of those to be affected by it (the ground for review thus here plays �an instrumental role in promoting just decisions’17).
This preÂsumption against arbitrariness is, in addition, complemented by procedural impropriety’s emphasis on transparency in, and accountability for, the exercise of power. For instance, transparency may be facilitated both by the initial hearing and by a subsequent duty to give reasons for a decision; and accountability may be ensured where those reasons provide the basis for an appeal or, in the absence of an alternative remedy, an applicaÂtion for judicial review (on reasons see [7.26]-[7.30] and [7.46]-[7.47]).18 Each of the values of non-arbitrariness, transparency, and accountability likewise informs the requirement that a decision-maker should not be self-interested in the decision to be taken: were it to be otherwise, the hearing may not be fair, the reasons misleading, and the corresponding scope for accountability limited.[7.06] The values of non-arbitrariness, transparency, and accountability take form to a greater or lesser extent in statute law, the common law, and/or Article 6 ECHR, and the relevant authorities and principles of law are considered below ([7.18]-[7.83]).
There are, however, three definitional points that underlie those authorities and princiÂples and which are of a more general importance to the workings of procedural impropriety as a ground for review. These concern: the relationship between statute law and the common law; the reach—and the context-sensitive nature—of common law fairness; and the scope of Article 6 ECHR.the Home Department [2013] 3 WLR 813. For national security/anti-terrorism case law under Art 6 ECHR and the common law see [7.39]-[7.40].
14As per Art 51 of the Charter. But note that early case law concerning the Charter suggests an expansive approach to the question of when EU law is being implemented: see, eg, Rugby Football Union v Viagogo Ltd [2012] UKSC 55; [2012] 1 WLR 3333.
15 Art 52(3) of the Charter.
16 Re ReillyS Application [2013] UKSC 61, [2013] 3 WLR 1020, 1045, para 68, Lord Reed.
17 Raji v General Medical Council [2003] UKPC 24, [2003] 1 WLR 1052, 1058, para 13, Lord Steyn.
18 On judicial review and alternative remedies see further [2.34]-[2.35].
The Relationship between Statute Law and the Common Law
[7.07] Legislation that delegates a power of decision to a subordinate body will often contain a range of procedural requirements or safeguards and, where a decision-maker fails to act in a manner that is consistent with those, any corresponding decision may be deemed ultra vires (see [7.18]-[7.22]). In constitutional terms, this is consonant with the doctrine of legislative supremacy and the understanding that decision-makers must observe the parameters of legislation that entrusts them with a particular decisionÂmaking function.[1419] However, even where the decision-maker has acted in a manner that is consistent with statutory requirements, it does not necessarily follow that a correÂsponding decision is procedurally sound.[1420] This is because the courts have long held that the question whether there has been procedural fairness is a question of law for the courts,[1421] which may use the common law to imply â€?so much and no more...
by way of additional procedural safeguards as will ensure the attainment of fairness’.[1422] Such use of the common law will be particularly apparent when an individual’s rights or interests are affected by a decision and, even though the courts will not prescribe the additional procedures to be followed by the decision-maker, they will assess whether the procedures adopted are fair in all the circumstances[1423] (the courts thus accept that it is for the decision-maker to decide upon the form of procedures beyond those speciÂfied in statute, albeit that affected parties may have a common law right to make submissions as to the procedure to be adopted[1424]). The courts in this way fill any gaps that may be left in legislation by viewing fairness as a wider common law precept rather than one to be defined by statute.[7.08] The fact that the common law can supplement legislative schemes should not, however, be taken to mean that use of the concept of fairness challenges the UK conÂstitution’s emphasis on legislative supremacy. Thus, although the courts have stated that they will scrutinise the fairness of wider decision-making processes closely,[1425] they do so on the presumption that the Westminster Parliament implicitly requires that deciÂsions be made in accordance with the demands of common law fairness.[1426] One corollary of this is that the Westminster Parliament may legislate, either expressly or by necessary implication, to place common law guarantees in abeyance[1427] (although there would remain the prospect of a declaration of incompatibility with the ECHR should the legislation also impact upon Article 6 ECHR’s procedural guarantees[1428]). Some case law has in similar vein held that, where legislation lays down an exhaustive procedural code, it may be neither necessary nor legitimate for the courts to imply further safeguards.[1429]
The Reach of Common Law Fairness
�Rights’, �Interests’, and �Legitimate Expectations’
[7.09] The common law rules of fairness—alternatively termed the rules of â€?natural justice’ (see [7.03])—have a broad reach and apply most obviously when a decisionÂmaking process has implications for an individual’s â€?rights’ or â€?interests’.
Although rights and interests can be difficult to define and/or distinguish,[1430] it is accepted that the common law rules can apply where a decision is to be taken in respect of something to which the individual is legally, though not absolutely, entitled (for instance, property[1431] or liberty[1432]) or in respect of something which the individual has been given and upon which he or she depends (for instance, a licence for an economic activity[1433] or a contract of employment that has since given rise to disciplinary proceedings[1434]). This approach to the reach of the rules is more recent in design, as the law previously fastened upon distinctions that tended to limit the application of the rules to â€?judicial’ determinations in respect of â€?rights’, as opposed to â€?administrative’ determinations in respect of â€?interÂests’ (or â€?privileges’).[1435] However, the law has now moved beyond such distinctions[1436] and it is accepted that the rules are of potential application whenever â€?(anyone) decides anything’.[1437] Decision-makers are, with only very few exceptions, thus under a general common law duty to act fairly[1438] (for an exception see [7.12] and [7.53] on prosecution decisions taken by the Public Prosecution Service).[7.10] The rules of fairness can also apply in cases where an individual has no recogÂnised right or interest but where the court considers that the individual has a legitimate expectation of fair treatment (a so-called â€?procedural legitimate expectation’). In this context, the application of the rules of fairness follows not from the fact of something that the individual has (such as a property right or a licence) but rather from the judicial desire to control decision-making with reference to the values of consistency and the rule of law.[1439] For instance, an individual may argue that they have a procedural legitimate expectation as a result of prior governmental practice[1440] or of a government statement to the effect that the individual would be consulted in advance of a decision being taken[1441] (practices and statements may, depending on context, also give rise to â€?substantive legitimate expectations’:[1442] see [7.13]-[7.14]).
While an expectation will not thereby enjoy immediate legitimacy—the question of legitimacy is to be determined objectively and with reference to the full legal and factual context of a case[1443]—the courts are anxious to ensure that government is held to the highest standards of �regularity, predictability and certainty in (its) dealing with the public’.[1444] Hence where an individual has, for example, a legitimate expectation of consultation in advance of a decision, the courts will require that there is an opportunity for consultation unless there is an overriding reason to deny the opportunity[1445] (such as the interests of national security[1446]). They will here also require that the process of consultation is adequate, albeit that the question of what is adequate will depend on context (see [7.11] and [7.33]).Fairness as a Context-dependent Requirement
[7.11] The application of the common law rules is, however, moderated by the context of any decision and the demands of fairness may vary accordingly. The point is perhaps most famously associated with Lord Bridge’s statement that
what the requirements of fairness demand when any body, domestic, administrative, or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.[1447]
Where the courts consider that the circumstances of a decision demand that procedural protection should be at its highest—for instance, where a licence for an economic activity is to be revoked[1448]—an individual may thus expect to benefit from the full range of safeguards associated with a fair hearing (see [7.31]-[7.51]). However, where an individual is seeking the renewal of their licence, or where they are applying for a licence for the first time, the demands of fairness may lessen.[1449] In other cases, the courts may even consider that, while procedural protections would ordinarily be desirable, the circumstances surrounding the decision override some of the demands of fairness.
Typical examples here would include decisions taken in respect of counter-terrorism50 and national security more generally51 (see [7.39]-[7.40] and [7.52]-[7.55]).[7.12] A related issue is whether the demands of fairness need to be met at each and every stage of a decision-making process, or whether it is only the overall process that needs to be fair. This issue can arise in two main ways: first, where an individual argues that they have not been party to a preliminary determination that will inform a final decision in respect of him or her; and, second, where a decision has been taken in apparent breach of the rules of fairness but where the individual has an alternative right of appeal. The common law’s starting point here is that decision-makers should seek to observe the demands of fairness at all stages but that, where it is not possible to do so, the overall process should be fair.52 In respect of preliminary determinations, there is thus authority to the effect that, where the determination concerns the question whether to, for instance, initiate criminal proceedings against an individual, there is no right to a hearing at that stage as the individual can question all evidence and so on at trial53 (the courts have, in any event, also said that the rules of fairness should not apply to prosecution decisions given the complex nature of the statutory function perÂformed by the Public Prosecution Service;54 although prosecution decisions can at the same time be embraced by the Human Rights Act 1998 and procedural obligations can flow from that source, for example, in respect of the giving of reasons—see [7.53]). The corresponding approach where there is a right of appeal then depends on the nature of the appeal and whether it might â€?cure’ the original defect (the so-called â€?curative’ principle). Hence where there is a full right of appeal, it is more likely that this will be able to cure the original defect, and an individual would therefore ordinarily be required to exhaust that effective alternative remedy rather than raise the matter by way of an application for judicial review (should review proceedings be brought the High Court may decide, in its discretion, not to grant a remedy55). However, where the appeal is limited to a point of law, it may be that the absence of fairness during the original decision-making process cannot be remedied by that alternative means. Under those circumstances, the High Court may therefore quash the original decision on an application for judicial review and require that it be retaken in the light of the demands of fairness (on the role of the curative principle see further [7.50]; and see too [7.51] on the significance of the related concept of â€?composite’ compliance with Article 6 ECHR).
Procedural and Substantive Fairness
[7.13] It should finally be noted that common law fairness now has both a procedural
50Eg, Re Shuker’s Application [2004] NI 367 (Attorney-General’s decision not to �de-schedule’ certain offences under the Terrorism Act 2000 not open to review for failure to comply with the requirements of procedural fairness). See also, eg, Re Arthurs’ Application [2010] NIQB 75.
51Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (government’s failure to consult unions in advance of a change in employment conditions justified for reasons of national security).
52 In Re McClean [2005] UKHL 46, [2005] NI 490, 504-5, para 34, Lord Bingham; and Re Gallagher’s Application [2007] NIQB 37, para 9.
53 Wiseman v Borneman [1971] AC 297.
54 See Re Boyle’s Application [2006] NICA 16; and Re Adams’ Application [2001] NI 1.
55Re Burke’s Application, 9 March 1994, unreported, applying Calvin v Carr [1980] AC 574. On effective alternative remedies see [2.34]-[2.35]. and a substantive dimension[1450] and that a remedy may issue where there has been a breach of procedure and/or where the final decision is substantively unfair.[1451] The clearest manifestation of this change has been in relation to the doctrine of legitimate expectaÂtions (see [7.10]), as the courts now accept that an individual may have an enforceable expectation of, for instance, consultation in advance of a decision being taken (proceÂdural fairness), as well as an expectation that the decision will be consistent with an outcome that the individual expected given an earlier representation made to him or her (substantive fairness).[1452] While the courts will, at the same time, be unlikely to intervene to protect substantive expectations where the representation has â€?implications for an innominate class of persons’[1453]—the Court of Appeal has said that the doctrine should be narrowly construed[1454]—they will intervene where the representation has been made to â€?one or a few people giving the promise or representation the character of a contract’[1455] (subject to the counter-argument that there is a public interest justification for frustrating the expectation[1456]). The objective here is thus to safeguard the rule of law and to prevent the â€?abuse of power’.[1457]
[7.14] This shift towards review for substantive fairness has attracted criticism because it is thought to have the potential to challenge the separation of powers doctrine that has long defined the workings of the grounds for judicial review.[1458] Comparable critiÂcisms have not, in contrast, generally been made in respect of developments in procedural fairness precisely because the courts are here concerned with the question of how a decision has been reached rather than with whether the decision is substantively justiÂfied. On the other hand, it can be said that matters of procedure and substance may not always or easily be disentangled, and that a â€?procedural’ development may have â€?substantive’ implications. The point can perhaps best be seen in respect of a common law duty to give reasons: while the duty may be described as a facet of the right to a hearing (see [7.46]-[7.49]), any reasons given may subsequently be used to found an application for judicial review that centres on arguments of relevancy, unreasonableness, lack of proportion, abuse of power, and so on.[1459]
The Scope of Article 6 ECHR
[7.15] Article 6 ECHR’s procedural guarantees are central to the workings of the ECHR, and there is a large body of case law on the form that protection of the indiÂvidual should take[1460] (see [7.31]-[7.83]). The first paragraph of the Article reads:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[1461]
For the purposes of a clear majority of judicial review cases, the key term in the Article is â€?civil rights’. This term, which has an autonomous meaning under the ECHR,[1462] has historically been associated with the concept of private law rights as is used in civil law systems,[1463] with Article 6 ECHR applying where there is a â€?dispute’ (or â€?contestation’) about such rights[1464] in proceedings that are determinative of the rights.[1465] This historical reference point has, in turn, given rise to considerable difficulty in the international and domestic case law, as it has not always been clear whether administrative determinations are embraced by Article 6 ECHR[1466] (although it is now established that public law rights are covered only where they are of a personal and economic nature, not where they are contingent upon a series of evaluative judgements on the part of a public authority:[1467] see [7.78]). The case law of the ECtHR has, however, tended to adopt a broad approach to the interpretation of the term, and â€?civil rights’ have been taken to be engaged in disputes involving land use,[1468] monetary claims against public authorities,[1469] licences (whether applied for or to be revoked),[1470] social security benefits,[1471] and disciplinary proceedings.[1472] On the other hand, Article 6(1) has not been taken as engaged in the context of immigration and deportation decisions[1473] (although it can apply in extradiÂtion proceedings in UK courts that involve UK citizens[1474]), or in the context of some public sector employment disputes.[1475] The Northern Ireland courts have similarly held that civil rights have not been engaged by decisions about whether a trial should take place before a jury;[1476] by a decision to refuse to grant an individual a firearms licence;[1477] by a decision to exclude an individual from the Key Person Protection Scheme;[1478] by a refusal to make a discretionary award of compensation to an individual under the terms of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988;[1479] and by a decision to withhold payments of public monies to political parties associated with paramilitary organisations.[1480]
[7.16] One consequence of the origins of, and the interpretation given to, â€?civil rights’ is that the procedural guarantees in Article 6 ECHR do not have as a broad a reach as the common law rules of fairness[1481] (on which see [7.09]-[7.14][1482]). The Article has, however, still had a significant impact on those common law rules, which have been modified to absorb elements of the ECHR (see, for instance, [7.63] on the test for apparent bias). Article 6 ECHR has, moreover, raised important questions about the intensity of judicial review that is required where an individual challenges a determinaÂtion in respect of their â€?civil rights’. This is because the Article requires that individuals have access to â€?an independent and impartial tribunal’ that has â€?full jurisdiction’ in the matter before it.[1483] Questions have thus arisen about how far the High Court can be said to have full jurisdiction on an application for judicial review when the judicial review procedure has historically fastened upon a â€?review, not appeal’ distinction.[1484] The corresponding answers given, to date, have focused on the understanding that â€?full jurisdiction’ is a context-dependent requirement and that it may not be necessary for a reviewing court to hear a full appeal in all cases.[1485] The courts have also emphasised that, although judicial review does not consider the merits of a decision, there remains a wide range of arguments that might be made even within the traditional grounds for review.[1486] On the other hand, it has also been recognised that judicial review has not been sufficient in some cases precisely because the courts have not been able to, among other things, reach their own conclusions on disputed questions of fact or substitute their decisions for those of the original decision-maker[1487] (see [7.73]-[7.79]). Such cases must, however, now be read in the light of more recent Supreme Court authorities that have held that public law rights are covered by Article 6 ECHR only where the rights in question are of a personal and economic nature and not where they are contingent upon a series of evaluative judgements on the part of a public authority[1488] (see [7.78]).
[7.17] Article 6 ECHR also applies in respect of â€?criminal charges’, where its text specifies a number of minimum guarantees for the individual.[1489] While these will obviÂously be of more immediate relevance in criminal proceedings, the Article’s guarantees in the criminal context have influenced those applicable in the civil and may thereby be of analogical value in many applications for judicial review.[1490] Issues about criminal charges have, moreover, arisen in some applications for judicial review, albeit that the number of cases is small. These include cases in which the courts were asked to decide whether the decision to revoke a prisoner’s early release licence was a determination in respect of a criminal charge (it was not)[1491] and in which a challenge was made to a magistrate’s refusal to adjourn a trial in order to allow the defendant to be represented by his counsel of choice.[1492]