Natural
Justice
Natural Justice is an
umbrella term for the legal standards of basic fairness. It is a
fundamental doctrine within the common law, rested in centuries
of legal tradition.
R v Panel on
Takeovers and Mergers, ex parte Datafin PLC (1987).
Sir John Donaldson, Master of the Rolls "... a failure to
observe the basic rules of natural justice, which is probably
better described as fundamental unfairness since justice in
nature is conspicuous by its absence."
John
v Rees (1970). Justice Megarry" It
may be that there are some who would decry the importance of the
rules of natural justice. ......those who take this view do not,
I think, do themselves justice. As everybody who has anything to
do with the law well knows, the path of the law is strewn with
examples of open and shut cases which, somehow, were not: of
unanswerable charges which, in the event, were completely
answered ; with inexplainable conduct which was fully explained;
........ nor are those with any knowledge of human nature who
pause to think for a moment likely to underestimate the feelings
of resentment of those who find there is a decison against them
as being made without their being afforded any opportunity to
influence the course of events."
Fairmount
Investments Ltd v Secretary of State for the Environment (1976).
Lord Russell "I am satisfied that if the true conclusion is
that the course which events followed resulted in that degree of
unfairness ... that it is commonly referred to as a departure
from the principles of natural justice and it may equally be
said that the order is not within the powers of the Act and that
a requirement of the Act has not been complied with. For it is
to be implied, unless the contrary appears, that Parliament does
not authorise by the Act the exercise of powers in breach of the
principles of natural justice, and that Parliament does by the
Act require, in paraticular procedures, compliance with those
principles ."
R v Tower
Hamlets London Borough Council ex parte Chetnik Developments Ltd
(1988). Lord Bridge "Statutory
power conferred for public purposes is conferred as if it were
upon trust, not absolutely - that is to say, it can validly be
used only in the right and proper way in which Parliament when
conferring it is presumed to have intended."
Mahon
v Air New Zealand Ltd (1984) Lord
Diplock " the decision to make the finding must be based on
some material which tends logically to show the existence of
facts consistent with the finding and that the reasoning
supportive of the finding, if it be disclosed, is not logically
self-contradictory".
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Statutory
Power: Duty to act fairly.
R
v Commission for Racial Equality ex parte Hillingdon London
Borough Council (1982). Lord Diplock "I
do not think that in administrative law as it has developed over
the last 20 years attaching a label "quasi-judicial"
to it is of any significance. Where an Act of Parliament confers
upon an administrative body functions which involves making
decisions which affect to their detriment the rights of other
persons ... there is a presumption that Parliament intended that
the administrative body should act fairly towards those persons
who will be affected by their decision."
R
v Inland Revenue Commissioners ex parte Unilever PLC (1996)
Lord Justice Simon Brown "Unfairness amounting to an abuse
of power .......... it is unlawful ....... because it is
illogical or immoral or both for a public authority to act with
conspicuous unfairness and in that sense abuse its power".
R
v Secretary of State for Home Department ex parte Pierson (1998)
Lord Hope " unfairness ...... as there are no statutory
rules, the presumption must be that he [Secretary of State] will
exercise his powers in a manner which is fair in all the
circumstances." R v Department for
Education & Employement ex parte Begbie(2000)
Lord Justice Laws "Fairness and reasonableness and their
contraries are objective concepts: otherwise there would be no
public law, or if there were it would be palm tree
justice."
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Statutory
Power: True purpose.
R
v Secretary of State for Foreign and Commonwealth Affairs, ex
parte World Development Movement Ltd (1995).
Lord Justice Rose "statutory powers however permissive,
must be used with scrupulous attention to their true purposes
and for reasons which are relevant and proper"
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Statutory
Power: Duties and Limitations.
R
v Secretary of State for the Home Department ex parte Pierson
(1998). Lord Steyn "... unless
there is the clearest provision to the contrary, Parliament must
be presumed not to legislate contrary to the rule of law. And
the rule of law enforces minimum standards of fairness, both
substantive and procedural."
R
v Secretary of State for the Environment Transport & the
Regions ex p Spath Holme (2001). Lord
Nicholls "No statutory power is of unlimited scope"
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Statutory
power: Discretion, duty to promote legislative
purpose.
Recommendation
Number R (80)2 of the Committee of Ministers (adopted 11
March(1980) In describing this basic
principle "an administrative authority when exercising a
discretionary power .......... observes objectivity and
impartiality, taking into account any of the factors relevant to
the particular case".
R v
Secretary of State for Home Department ex parte Brind (1991)
Lord Ackner "The discretion .......... must be used only to
advance the purposes for which it was conferred. It has
accordingly to be used to promote the policy and objects of the
Act."
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Statutory
power: Duty not to act 'ultra vires'.
HTV
Ltd v Price Commission (1976) Lord
Denning - Master of the Rolls "A public body which is
entrusted by Parliament with the exercise of powers for the
public good cannot fetter itself in the exercise of them. It
cannot be estopped from doing its public duty. But that is
subject to the qualification that it must not misue its powers:
and it is a misuse of power for it to act unfairly or unjustly
towards a private citizen when there is no overriding public
interest to warrant it".
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Statutory
power: Unreasonableness.
Bromley
London Borough Council v Greater London Council (1983)
Lord Scarman "The unreasonableness of the decision i.e that
which would enable the Court to conclude that it is one which no
reasonable authority could have reached, is that it proceeded
upon a misconception of the duties imposed upon the appellants
by the statute."
R v Hendon
Justices, ex parte Director of Public Prosecutions (1994)
It is implicit in the enactment that a conferred power is not to
be exercised unreasonably ...... If it is ... the conferred
power can be characterised as illegal, void or a nullity"
R
v Department for Education & Employement ex parte
Begbie(2000) Lord Justice Laws "Fairness
and reasonableness and their contraries are objective concepts:
otherwise there would be no public law, or if there were it
would be palm tree justice."
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Statutory
power: Statutory intent.
Lord
Steyn (1997) "We live in a
democracy in the narrow sense that majority rule prevails but,
more importantly, we live in a liberal European democracy based
on values of justice, liberty, equality and humanity. Judges are
therefore entitled to assume, unless the Statute makes crystal
clear provision to the contrary, that Parliament would not wish
to make unjust laws."
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Statutory
power: Duty to act in good faith.
Board
of Education v Rice (1911) Lord Loreburn
'They must act in good faith and fairly listen to both sides,
for that is the duty lying upon everyone who decides
anything".
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Statutory
power: Discretion, duty to act reasonably.
Roberts
v Hopwood (1925) Lord Wrenbury "A
person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
empower a man to do what he likes merely because he is minded to
do so - he must generally exercise the discretion to do not what
he likes but what he ought. In other words, he must, by use of
his reason, ascertain and follow the course which reason
directs. He must act reasonably"
R
v Department for Education & Employement ex parte
Begbie(2000) Lord Justice Laws "Fairness
and reasonableness and their contraries are objective concepts:
otherwise there would be no public law, or if there were it
would be palm tree justice."
Bushell
v Secretary of State for the Environment (1981)
Lord Diplock "in exercising their discretion, as in
exercising any other administrative function they owe a
constitutional duty to perform it fairly and honestly and to the
best of their ability"
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Right
to procedural fairness.
Greater
London Council (1985) Lord Justice
Muskill identified four ways in which a decision might be
procedurally improper, namely,"
1. Unfair behaviour
towards persons affected by the decision.
2. Failure to
follow a procedure laid down by legislation.
3. Failure
properly to marshall the evidence on which the decision should
be based. For example taking into account an immaterial factor
or failing to take into account a material factor or failing to
take reasonable steps to obtain the relevant information.
4.
Failure to approach the decision in the right spirit for example
where the decision maker is actuated by bias or where he is
content to let the decision be made by chance"
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Duty
to enquire/ask the right questions.
The
Secretary of State for Education and Science v Tameside M B C
(1977) Lord Diplock. "the question
for the Court is did the Secretary of State ask himself the
right question and take reasonable steps to acquaint himself
with the relevant information to enable him to answer it
correctly?"
R v Secretary of
State for the Home Department ex parte Venables (1998)
Lord Justice Hobhouse quot;Essential that (the Secretary of
State) should be fully informed of all material facts and
circumstances", "it is not clear what account the
Secretary of State took of this consideration nor that he took
any steps to inform himself of the relevant facts",
Secretary
of State for Education and Science v Tameside M B C (1977)
Lord Wilberforce "The ultimate question in this case, in my
opinion, is whether the Secretary of State has given sufficient,
or any, weight to this particular factor in the exercise of his
judgement."
Lord Diplock
"The Secretary of State did not direct his mind to the
right question; and so, since his good faith is not in question,
he cannot have directed himself properly in law"
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Duty
to consider all relevant material.
R
v Secretary of State for the Home Department ex parte Nelson
(1994) "Not satisfied that the
material before the Secretary of State was properly considered
before the decision was taken"
R
v Legal Aid Area Number 1 (London) Appeal Committee ex parte
McCormick (2000) "The Committee
cannot simply leave those issues in the air since their
resolution ... could be beneficial ...", "serious
doubts about whether they did take into consideration all
potentially relevant factors"
Dakar
v Minister of Transport "There may
be situations when the Ministerial body has not taken any
extraneous factors into account and has confined itself solely
to relevant factors, yet there has been such a distortion and
lack of proportion given to the weight given to these that the
final result cannot possibly hold up and is therefore,
completely unreasonable."
Secretary
of State for Education & Science v Tameside Metropolitan
Borough Council (1977) Lord Wilberforce
"The ultimate question in this case, in my opinion, is
whether the Secretary of State has given sufficient, or any,
weight to this particular factor in the exercise of his
judgement"
R v Parliamentary
Commisioner for Administration, ex parte Balchin (1998)
"The relevant test .......... as well as a consideration
has been omitted which, had account been taken of it, might have
caused the decision maker to reach a different
conclusion"
Recommendation
Number R (80)2 of the Committee of Ministers (adopted 11
March(1980) In describing this basic
principle "an administrative authority when exercising a
discretionary power .......... observes objectivity and
impartiality, taking into account any of the factors relevant to
the particular case".
R v
Director General of Telecommunications, ex parte Cellcom Ltd
(1999)Justice Lightman "The Court
may interfere if the Director has taken into account an
irrelevant consideration or has failed to take into account a
relevant consideration."
R
(on the application of Alconbury Developments Ltd) v Secretary
of State for the Environment and the Regions (2001)
Lord Slynn "It has long been established that if the
Secretary of State ............. takes into account matters
irrelevant to his decision or refuses or fails to take into
account matters relevant to his decision .......... The Court
may set his decision aside".
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Duty
to exclude all irrelevant material.
R
v Director General of Telecommunications, ex parte Cellcom Ltd
(1999) Justice Lightman "The Court
may interfere if the Director has taken into account an
irrelevant consideration or has failed to take into account a
relevant consideration."
R
(on the application of Alconbury Developments Ltd) v Secretary
of State for the Environment and the Regions (2001)
Lord Slynn "It has long been established that if the
Secretary of State ............. takes into account matters
irrelevant to his decision or refuses or fails to take into
account matters relevant to his decision .......... The Court
may set his decision aside".
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Right
to see documents relied on.
T
A Miller v Ministry of Housing Local Government (1968)
"The person at risk should have an opportunity to comment
on materials being considered by the decision maker and to
contradict them".
Wiseman v
Borneman (1971) Lord Morris "I feel
bound to express my prima facie dislike of a situation in which
the tribunal has before it a document (which might contain both
facts and arguments) which was calculated to influence the
tribunal but which has not been seen by a party who will be
affected by the tribunal’s decision"
R
v London Borough of Camden ex parte Paddock (1995)
Justice Sedley "The principle that a decision making body
should not see relevant to giving those affected the chance to
comment on it and if they wish, to contravert it is fundamental
to the principle of law (which governs public administration as
much as it does adjudication) that to act in good faith and
listen fairly to both sides is the duty lying upon everyone who
decides anything."
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Right
to cross-examine.
Osgood
v Nelson (1872) Baron Martin There can
be no doubt my Lords that the Courts of Law in this country,
would take care that any proceeding in this country were
conducted in a proper manner; that the person proposed who was
to be removed should have every opportunity of cross-examining
the witnesses brought forward against him, or otherwise opposing
the case up against him; that he should have the power of
calling witnesses to prove his own case; and he should have
every possible opportunity which a person can have, according to
the law and constitution of this country, of defending himself
and of establishing that he is not liable to amotion"
Bushell
v Secretary of State for the Environment (1981)
Lord Edmond-Davies There is a massive body of accepted decisions
establishing that natural justice requires that a party be given
an opportunity of challenging by cross-examination witnesses
called by another party on relevant issues."
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Duty
to consider evidence of probative value.
Mahon
v Air New Zealand Ltd (1984) Lord
Diplock an investigative decision maker "must base his
decision upon evidence that has some probative value."
R
v Wakefield Magistrates Court ex parte Wakefield M B C (2000)
The Magistrates decision "fatally flawed by its error of
law in purporting to make a critical finding of fact, without
having heard any evidence called in the proceedings upon which
that finding of fact could properly be founded"
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Right
to sufficient information.
Bushell
v Secretary of State for the Environment (1981)
Lord Diplock "Fairness requires that the objector .........
be given sufficient information about the reasons relied on by
the Department as justifing the draft scheme to enable them to
challenge the accuracy of any facts and the validity of any
arguments upon which the departmental reasons are based"
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Right
to legitimate expectation.
Council
of Civil Service Unions v Ministry of the Civil Service (1985)
Lord Roskill "The principle (of legitimate expectation) may
(include) .......... an expectation of being allowed to
undertake representations especially where the aggrieved party
is seeking to persuade an authority to depart from a lawfully
established policy adopted in connection with the exercise of a
particular power because of some suggested exceptional reasons
justifying such a departure."
R
v Secretary of State for The Home Department ex parte Ahmed
(1999) Lord Justice Hobhouse "The
principle of legitimate expectation and English law is a
principle of fairness in the decision making
process................."
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Duty
not to adopt an unduly rigid policy.
R
v Secretary of State for the Enviroment ex p.Brent London
Borough Council (1982) "(The
Minister is) entitled to have well in mind his policy. To this
extent the reference to keep an open mind does not mean an empty
mind. This mind must be kept ajar"
R
v Hampshire County Council ex parte W (1994)
Justice Sedley "What is required by the law is that,
without falling into arbitrariness, decision makers must
remember that policies are means of securing a consistent
approach to individual cases, each of which is likely to differ
from others. Each case must be considered, therefore, in the
light of the policy, but not so that the policy automatically
determines the outcome".
R v
Ministry for Agriculture Fisheries and Food ex p Hamble
Fisheries(Off shore) Ltd (1995) Justice
Sedley "In describing the two conflicting imperatives of
public law "the first is that while a policy may be adopted
for the exercise of a discretion it must not be applied with
rigidity which excludes consideration of possible departure on
individual cases.............., the second is that a
discretionary public law power must not be exercised arbitrarily
or with partiality as between individuals or classes potentially
affected by it............. the line between individual
consideration and inconsistency, slender enough in theory, can
be imperceptible in practice"
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Duty
to reconsider (where an important error of fact is made
known).
R
v Newham London Borough Council ex parte Begum (1996)
"the decision cried out for review when the error, on so
important a matter, was drawn to the council’s attention
by the claimant’s solicitors ............ A failure to
reconsider the decision in these circumstances would in my
judgement have been unlawful."
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Duty
not to be irrational.
Bromley
and London Borough Council v Greater London Council (1983)
Lord Diplock "Decisions that, looked at objectively, are so
devoid of any plausible justification that no reasonable body of
persons could have reached".
Council
of Civil Service Unions v Minister for the Civil Service (1985)
Lord Diplock "By irrationality I mean what can now be
succinctly referred to as Wednesbury unreasonableness
............. it applies to a decision which is so outrageous in
its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be
decided could have arrived at it."
R
v Housing Benefit Review Board of London Borough of Sutton ex
parte Keegan (1995) Conclusion "was
arrived at in the teeth of the evidence and was accordingly
Wednesbury unreasonable"
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