, 1997; online edn, Oxford Academic , 22 Mar. 2012 ), https://doi.org/10.1093/acprof:oso/9780198256762.003.0011, accessed 4 Sept. 2024.
Navbar Search Filter Mobile Enter search term Search Navbar Search Filter Enter search term SearchThis chapter describes and analyses the general judicial approach to procedural fairness. It examines a number of issues: the tests developed by English law as to who is entitled to fair procedures; the extent to which abstract principles are translated into more detailed procedural rules; and the general judicial approach to exactly what procedural fairness requires and how those requirements are reconciled by the courts with competing considerations, especially costs.
Collection: Oxford Scholarship OnlineAmongst the several sources of procedures, the courts have a special and distinctive place. Although the volume of cases they consider is small, the courts have a special significance for a number of reasons. The first is that they are concerned primarily, if not exclusively, with questions of fairness in relation to procedures; secondly, they give reasoned explanations for their decisions; and thirdly, their rulings, although directed at the case in hand, can often be regarded as laying down general principles for application in other cases. The courts have made good use in recent years of their standard-setting role with the result that they have been able to cast off certain restrictions on their own doctrines of procedural fairness; by articulating a number of fundamental, general principles, they also have given guidance to Parliament and the administration. It is true that the precise extent and effect of that guidance is not always clear and requires further study; it is also the case that the courts have not always made the most of opportunities to develop more complete standards of procedural fairness. Nevertheless, they have been a major force in opening up administrative processes to basic notions of due process and fair procedures, and for that reason they occupy a special place in a study of those notions. The role of judicial review as a source of principles of procedural fairness is a major theme running through this and succeeding chapters.
The aim of this Chapter is to describe and analyse the general judicial approach to procedural fairness. That aim is achieved by examining a number of issues: the tests developed by English law as to who is entitled to fair treatment and fair procedures; the standards of fair treatment and fair procedures; the extent to which abstract principles are translated into more detailed procedural rules; and the general judicial approach to exactly what procedural fairness requires and how those requirements are reconciled by the courts with competing considerations, especially costs.
Legislators, administrators, and courts are all concerned with procedural issues. A new statutory scheme should make provision for procedures, but there is no general blueprint to follow and the variety of approaches found in statutes is considerable. Procedural issues will only rarely attract the attention of the legislators themselves, being left in most cases to the professional judgment of departmental lawyers and parliamentary draftsmen. Indeed, the relationship between such professional advisers and policy-makers would be a worthwhile subject for study, since at present little is known about it. Administrators also are involved in procedures. They are often left to fill in procedural details, either by the express direction of Parliament, as is often the case with tribunals, or by necessary implication from the statute.
The third estate in procedural matters is the courts. Their role, which normally is exercised in the context of judicial review, is not to design primary procedures, but to determine whether those laid down by other authorities meet the standards of procedural fairness. The emphasis lawyers place on the courts may seem out of proportion to their actual role in procedural issues, but it is to some extent justified on the ground that, on many fundamental issues of fairness, the initiative is often taken by the courts. Judicial rulings in cases brought before them lay a foundation of principles which in turn influence Parliament and administrators. It was shown in the preceding chapter how in recent years other bodies have been created which have special interests in procedures, the proliferation of ombudsmen and similar investigatory bodies being notable examples. The work of the Parliamentary Commissioner for Administration (PCA) is concerned with whether government departments have followed good and fair procedures, and the same can be said of the work of other, more specialized ombudsmen. Another example of a different kind is the Council on Tribunals which has a special obligation to oversee procedural matters in relation to tribunals.
An initial question which may be raised is whether, despite the particular concerns of each of those authorities, we may talk of a general legal approach to procedural fairness, especially in administrative matters. Certainly, at a practical level, the same issues arise whatever the authority involved and whatever the context: should the person affected by the process be heard; what sort of hearing should it be; what information should be disclosed; should reasons be given; what does impartiality mean; when is an appeal required; and so on. The answers to such questions depend to a great degree on the context, but not entirely; they also have a more general dimension and can be seen as particular issues within a common framework. The framework itself can be understood at different levels. At an abstract level, the common concern is to devise procedures which in each context lead to fair treatment. At a lower level, the abstract issue can be translated into more precise questions: who is entitled to fair procedures in that context; what are the standards of fair treatment; and what practical procedures are needed to satisfy the standards. These three issues constitute the elements of a legal approach to procedural fairness and each will now be considered in a little more detail.
Fair procedures follow fair treatment, so that whenever there is a right to fair treatment by legal authorities, there is also a right to fair procedures. To put the matter at its simplest, whenever a person is involved with the state through its agencies, there is an entitlement to be treated fairly, and, therefore, according to fair procedures. This follows from the discussion in earlier chapters, but it may be of help to restate the gist of the argument. Questions of fair treatment usually arise within a relationship where one party is able to affect the other in a significant way. The relationship may be contractual, where A agrees with B to do Y; or it can arise from social status, as in the case of the parent-child relationship; or it may derive from the relations of power between the community and each citizen. The last of these is marked by the state having power and control: power to impose penalties and disadvantages, control over the distribution of goods and resources. The relationship between citizen and state is governed by implicit normative understandings shared by the members of the community. One such understanding, which is fundamental to the relationship, is that the state’s powers and control will be used fairly with respect to each citizen. The concept of fairness in turn means that each person will be given his due, that is, treated as he is entitled to be treated as expressed in authoritative legal standards. In order to be treated according to those standards, a person is entitled to the necessary procedures, and in that sense the right to fair procedures follows the right to fair treatment.
The practical expression of these ideas is that the duty to provide fair procedures comes into play whenever a person is affected by an administrative process. It might be the denial of a benefit, the imposition of a penalty, or the loss of some advantage. Other cases may be less direct and final, but nevertheless real; after an investigation and report, one’s reputation might be tarnished; or, as is the case of an arrest or prosecution, a suspect is taken just one step closer to a final outcome, possibly disadvantageous to his interests. In these cases, the person affected is the direct subject of the decision or process, but that need not be the case: I may be put at a disadvantage by a decision granting planning permission to my neighbour; similarly, I may be a member of a group all the members of which are affected by a decision or process.
There are many ways in which a person can be affected tangibly by the actions of officials, some direct and obvious, others indirect and less obvious. Each situation must be examined to see precisely how a person is affected and how society views the consequences. That itself can be problematical since there may be no clear consensus: for example, strongly held but conflicting views are likely to be expressed on whether an alien seeking admission to the country is owed a duty of fair treatment. In other cases, the same consequences may be viewed very differently by those who suffer them compared with the community at large. There are, moreover, bound to be cases of difficulty: is an interest group such as those dedicated to the protection of children, cats, or ancient monuments, owed a duty of fair treatment, or is it just the representatives of those whose interests are affected? Cases like these warrant closer examination than I can give here, but enough has been said to show that, while the principle of fair treatment is easily stated, it is not so easy to decide how it applies in particular cases.
When we move from these general questions of political morality to legal processes, it is usual to find that the range of interests and consequences which attract a right to fair procedures is narrowed. The law tends to ask not just whether a person is affected by a legal process in a general way, but whether certain definable interests are in issue. We have seen how the American doctrine of due process limits interests to life, liberty, or property. This has been taken to mean that, in order to attract due process, it is necessary not only to make out an interest in life, liberty or property, but also to show an entitlement to it under the Constitution or pursuant to state or federal law. 1 The range of interests attracting procedural fairness under the European Convention on Human Rights is even narrower, applying only when the interests are the subject of criminal proceedings or constitute civil rights. 2 English law has its own restrictions on the kinds of interests warranting procedural protection.
Any legal test based on a limited range of interests has certain disadvantages. At the level of principle, such restrictions may be hard to justify, since anyone who is affected by a legal decision has a right that it be made properly according to the law; that in turn is another way of saying that the person is owed a duty of fair treatment, and fair treatment requires fair procedures. Apart from that general point of principle, there are also practical disadvantages. One is the waste of time and resources in deciding whether an interest is protected or not. Another is that some interests valued by the community are likely to be excluded. A familiar criticism of the American doctrine of due process is that certain interests generally considered important do not qualify for due process. Another consequence is that the legal recognition of what constitutes a significant interest is likely to lag behind the views of the wider community. Interests in welfare, using the term in its widest sense of personal well-being, interests in personal liberty in its many forms, interests in being able to pursue opportunities, all offer a wider and more diffuse conception of interests than is easily translated into law. The need for a filter against any old claim being made is obvious, but the cost often is an unduly narrow version of what interests ought to attract procedural protection.
Reflection on the interests approach soon leads to the theoretical point of whether the very concept of an interest is the best way of allocating and restricting procedural protection. The idea of each person as the bearer of a bundle of interests may be useful for practical purposes, but it is less suitable as a defining characterization of the person and of what is important to him. Human personality may be constituted by more intangible senses of well-being, which carry moral significance as to how the person should be treated, in addition to any number of tangible and definable interests. The principle, for example, that the expectations of one person aroused by the undertaking of another should not be lightly frustrated is compelling in itself and need not be reduced to a notion of harmed interests. This is not to argue against a threshold for procedural protection based on interests; such an approach is morally justifiable and has practical advantages. But it is not the only way, nor is it comprehensive, for the rights to fair treatment and procedural protection go beyond the notion of harmed interests.
It is often said by the highest courts that in English law any official who decides anything has a duty to act fairly and in particular to listen to both sides. 3 Since duties of fairness are not owed in the abstract, this can be taken to mean that a duty is owed to anyone affected in a significant way by an official’s decision or action. English law is then brought squarely within the general principle of fair treatment and it is not normally difficult to determine whether a person is so affected. Once the duty of fair treatment comes into effect, it brings with it the duty to follow fair procedures.
Although a general principle along these lines is now established in English law, recent history and practice have shown its application to be uneven. Other factors besides the interest affected have weighed in the decision whether or not in a given context a duty of procedural fairness was owed. A review of statutes over the last several years does not reveal a clear or consistent pattern; rights to procedural fairness are sometimes amply conferred, at other times no provision is made at all. Much is left to administrative practice, but we do not know enough about what happens across the range of processes to draw any conclusions. Even in the courts, where decisions are important in setting general standards, approaches have been less than consistent. The general duty to act fairly was at one time restricted to administrative processes of a judicial nature, 4 at another time to decisions where legal rights were affected. 5 Both restrictions have now been replaced by the idea that the duty to act fairly applies whenever interests are at stake. 6 What counts as an interest can be problematical, but the tendency has been to broaden the concept beyond economic and property interests to include interests in liberty and welfare.
It is not beyond belief, however, that a court might still consider some interests unimportant enough to attract procedural protection. The alien seeking entry or resisting removal is a case in point; although an interest is at stake, it may not be an interest recognized by English law. Moreover, the interest test is not the only factor to consider. The context of administrative power is relevant, with some areas considered outside judicial protection. The prisons and other closed institutions used to be ignominious examples of where the writ of procedural fairness did not run; that is no longer the case, although some processes within the prison are still not subject to procedural fairness. This is sometimes achieved by their being characterized as managerial discretion or as incidental to maintaining good order. 7 Considerations like these can be legitimate grounds for overriding the general duty of fairness, but the concern is that they are rather crude notions and that their relationship to procedural fairness needs careful examination. Examples like these also raise a wider issue. The principles of fair treatment and fair procedures are general principles which, like any general principles, are likely to conflict with other aspects of the common good. I do not mean just the costs and inconveniences which are implicit in a commitment to principles of fair treatment; I refer rather to those other aspects of the common good which genuinely compete with fairness, so that some accommodation between the two has to be worked out. In some cases fairness may have to give way to other considerations, as in the case of national security; 8 in other cases, a fuller analysis may show that a genuine accommodation can be reached. The good management of a prison, for example, might be arranged in such a way as to include certain elements of procedural fairness. The need to be free of procedural restrictions might be justified in some matters, but such a conclusion should be reached only after careful and imaginative analysis; it should not be, as it often is, an assumption made at the beginning and rigidly applied.
The principle of procedural fairness may also be triggered by the notion of legitimate expectations, and although it is usually only relevant in relation to hearings, it is convenient to consider the issue here. In one sense legitimate expectations is an extension of the idea of an interest. The duty of procedural fairness is owed, it has been said, when a person’s rights, interests, or legitimate expectations are in issue. 9 One might have no right or interest at stake, but, because of something said or done by the authority, an expectation may be raised which should not be disappointed without following certain procedures. An example is an alien seeking an extension of a visa to stay in the United Kingdom. Under English law, he has no right or legitimate interest in being allowed to stay; but he might acquire a legitimate expectation from an undertaking or holding-out that he will be allowed to stay. 10 The expectation becomes a kind of interest which should not be prejudiced without a hearing.
A truer and more satisfactory basis for the link between legitimate expectations and procedural fairness is rather different. On this alternative basis, the principle of fair treatment behind legitimate expectations derives from an undertaking, explicit or implicit, given by an administrative body that, in the exercise of its powers, certain things will be done or not done. 11 Once such an undertaking is given, it would be unfair for the authority not to honour it, or at least not to do so without first following certain procedures. The undertakings which create an expectation may be of different kinds. One is a direct undertaking that certain procedures will be followed. In one case an express undertaking was given that each person’s situation would be looked at on its merits before a deportation order was imposed; 12 this was taken to mean that each person would be heard before being deported. In other cases the undertaking is implied. In the GCHQ case, 13 an undertaking that the unions would be consulted was implied from the practice of consulting them on other occasions when conditions of service were in question. 14 Lord Fraser put the point in this way:
prior consultation has been the invariable rule when conditions of service were to be significantly altered…in my opinion even if there had been no question of national security involved, the appellants would have had a legitimate expectation that the minister would consult them before issuing the instruction. 15
The underlying principle is that when a minister or other authority gives an undertaking that certain procedures will be followed before or in the course of a decision, it would be unfair to go back on that undertaking. 16
A second situation occurs where the expectation is based on an undertaking not as to procedures, but that a certain decision will be made or that a power will be exercised in a particular way. The extent to which an authority can be bound by undertakings of this kind is a matter of difficulty because of two conflicting principles. One is the principle of fair treatment which points to an authority being bound by its undertakings; the other is a principle of public law according to which an authority must use its powers as it considers best at the time. Since the general doctrine is that the public law principle prevails, an authority cannot be bound by prior undertakings which relate to the substance of its powers. However, in practice the courts do not simply apply the public law principle to the exclusion of fair treatment. A compromise is reached by requiring that, before the authority departs from its earlier undertaking, the party should be heard. The legal consequences of a commitment as to substance is that certain procedures must be followed before the authority may resort to its power to act or decide as it considers best at the time. 17 The rationale for this compromise approach is not entirely clear, but rests, presumably, on the idea that before an undertaking is overridden, it is fair to give notice and to let the party make a case against the change.
While legitimate expectations as a source of procedures depend on an undertaking of some sort, it is not always clear whether an undertaking is made out. This is particularly so where the undertaking is not given expressly but has to be inferred from the circumstances. The most problematical case is where the inference is that an existing state of affairs will continue or that a certain state of affairs will be brought into being. The point is brought out in GCHQ where, after stating that a civil servant had no right that any term in his employment would continue, Lord Diplock concluded:
civil servants employed at GCHQ who were members of the national trade union had, at best,…a legitimate expectation that they would continue to enjoy the benefits of such membership…So,…they were entitled, as a matter of public law under the head ‘procedural propriety’, before administrative action was taken on a decision to withdraw that benefit, to have communicated to the national trade unions…the reason for such withdrawal, and for such unions to be given the opportunity to comment on it. 18
The logic of the argument is: (i) the fact that a state of affairs has persisted may give rise to an expectation that it will continue; (ii) the expectation is based, presumably, on an implicit undertaking from the authority; (iii) the undertaking gives rise to a duty of fair treatment; (iv) the duty of fair treatment does not require that the state of affairs actually continue, but that certain procedures will be followed before it is altered and expectations disappointed; (v) the procedures usually required are that reasons for the proposed alterations be given and that a chance to comment be extended to the party.
I shall not attempt here to examine all the points of interest arising from the logic of the first argument, but shall conclude with two brief comments. 19 The first concerns the nature of the undertaking which usually takes the form that a state of affairs will happen or continue; that a licence will be renewed, that membership of a trade union will continue, or that a state policy will be applied. In order to discover whether an undertaking has been made and precisely what its content is, it is necessary to examine the power being exercised and the relationship between the official and the person affected. The question then is what is the best interpretation of the relationship, what understandings are there within it, and are they firm enough to create duties on the authority. Whether an undertaking is made out will depend very much on the context; and while every case of administrative power is likely to raise hopes that it will be used in one way rather than another, the point at which mere hope becomes a legitimate expectation may be hard to discern. The second comment is that once the notion of legitimate expectations is linked to an undertaking of some kind on the part of the authority, an apparently new and potentially rich source of standards of fair treatment is revealed. The source is only apparently novel because a similar notion of an implied undertaking or understanding lies behind the idea that rights and interests trigger the right to fair treatment and fair procedures. The person with a right has a legitimate expectation based on the undertaking or understanding that, when the right is under threat in any way, certain duties on administrative bodies come into play. The legitimate expectations movement is less a new source of duties of fair treatment than an extension of an old one.
Once the duty of fair treatment is held to apply in a given context, the next task is to identify the standards which constitute fair treatment. Since much has already been said about this, we may here be brief. The general idea is that each administrative process should be understood as a sphere of authority within which an official may do certain things, examine certain matters, or make certain decisions. Within that sphere of authority, normative standards govern the way an official should behave. Fair treatment then consists in each person’s case being decided, examined, or acted upon in accordance with the standards. The standards may relate to outcomes or to values independent of outcomes. They may be standards laid down by statute or delegated legislation; they may derive from the informal rules of the administrative authority; or they may be standards based on the common law or on a looser sense of social understandings. The richness and complexity of such standards have been described in earlier chapters where we saw how spheres of administrative authority are anchored in context and culture and steeped in moral and social conventions and understandings. It has also been made clear that this does not mean that anything goes; on the contrary, spheres of authority, even when discretionary, are typically closely structured by authoritative standards. And, moreover, it is not usually too difficult in each context to identify the governing legal standards constituting the basis of fair treatment, even though at the margins questions may arise as to their place, scope, and interpretation.
The identification of the standards of fair treatment depends then on a close analysis of each context of authority. But it would be wrong to convey the impression that this is always a difficult or complex matter. On the contrary, the governing statute will often be clear, providing a simple standard for the determination of cases, as portrayed in the model of routine administration. Things become more complex in cases of standard adjudication, for here elements of interpretation and discretion appear; moreover, the statutory provisions may now be supplemented by further standards of interpretation and consideration, deriving sometimes from the courts but more commonly from the administrative officials themselves. Such standards may include not only rules to apply but also matters to take into account, factors to consider and weigh up, so that fair treatment becomes bound up with the process by which the outcome is reached, as well as with the quality of the outcome itself. The position becomes even more fluid and open-ended when we move to policy-based discretion. Here the standards of fair treatment, while still linked to outcomes, become predominantly standards about what kinds of matters are to be taken into account and about the process for doing so. The principle that each case be properly considered is at the centre of the discretionary process and provides a powerful constraint on otherwise largely unconstrained processes; but that principle is directed at means and methods rather than given outcomes.
Once the duty of fair treatment has been made out and the standards of fair treatment identified, the final step is to settle the procedures. The three models of individualized decision-making developed earlier give some guidance. Routine administration requires little procedural formality other than providing the authority with the information needed for a decision. Standard adjudication and modifications around it point to the need for procedures of a broadly adjudicative kind, based on notice, the provision of evidence and materials, fact-finding, consideration of standards, and reasons. Policy-based discretion, for its part, while emphasizing the consultative process, also needs procedures relating to notice, evidence, fact-finding, due consideration, and reasons.
Each of these models provides a context within which more detailed procedures can be developed. That task can normally be divided into three elements: first, to enable access to the process; secondly, to provide for the proper determination of or dealing with the issue; and thirdly, to allow for recourse by way of appeal, review, or some other form of scrutiny. This procedural model does not always fit perfectly, but generally it nicely captures the three stages in individualized processes. To take a practical case, the welfare claimant, in order to be treated fairly, ought to be able to get his claim before the authority; it ought to be decided according to authoritative standards; and avenues of recourse by way of appeal or review should be open. The emphasis tends to fall on the middle level, the decision itself, but access and recourse are also vital elements. However, not always since in some processes, particularly those where the authority takes the initiative, such as an inquiry or investigation into a person’s affairs, access is not an element. In other cases, appeal or recourse from the initial process might not be appropriate. The role and importance of access and recourse are to be judged, not as separate and independent elements of procedural fairness, but according to their contribution to ensuring that people are dealt with in compliance with the standards of fair treatment. Questions of access to administrative processes require a study of their own and are not dealt with in this book, while issues of recourse are dealt with in Chapter 14.
The main emphasis in settling procedures is usually placed on the middle stage: the making of the decision, the determination to take action, the conduct of the inquiry, or the drawing of a conclusion. It is here that the basic questions of procedure arise: questions of notice and access to information; questions about the hearing, the gathering of evidence, and giving of reasons. Some guidance can be taken from the threefold classification of routine administration, standard adjudication, and policy-based discretion, but within each category considerable variation is possible. The gathering of evidence, for example, might be done by the administrator’s own investigation or left in the main to the parties. The need for a hearing might be accepted, but what form it takes contested: should it be oral with witnesses and cross-examination, or the chance to present oral argument, or nothing more than the presentation of written submissions? Each procedural step—notice, information, hearing, and reasons—can be handled in different ways and the precise procedural set finally adopted will depend heavily on what is most suitable in the context. The guiding objective should be fair treatment according to authoritative standards, but the connection between any specific procedure and fair treatment might be to some degree indirect. The resolution of one procedural issue may be intertwined with the resolution of others; the form of hearing might depend on how precise the standards of decision-making are, while both matters will affect the nature of the reasons that should be given. The ultimate aim is to be confident that, taken as a whole, the procedures satisfy the outcome and non-outcome based standards of fair treatment.
The design of procedures is a matter of practical judgment to be made by legislators, administrators, and courts in very specific contexts. However, several general points of guidance may be noted. In the first place, the major component of fair treatment will always be to have procedures which lead to the accurate and proper application of authoritative standards. Whatever the context, facts have to be found and standards applied to them, and Bentham’s firm but simple approach should be endorsed: identify what facts need to be ascertained and what standards to be applied, and then design suitable procedures, bearing in mind considerations of time, cost, and convenience. As to the facts, different approaches are open. The adversarial approach might be preferred where the parties themselves are responsible for presenting evidence; alternatively, the onus might be on the administrative body to gather evidence and draw conclusions; or possibly these might be some combination of the two. A more inquisitorial approach generally prevails at the primary decision—whether to grant welfare benefits, or a licence, or parole—where it is not a case of two parties in dispute, but rather one deciding an issue about a party. That will be especially so where the main purpose is to inquire into or investigate an issue, and then form a judgment about it. At the level of appeals, a more adversarial approach is typically used, since here the primary decision-maker becomes more like a party to a dispute who must defend the action he has taken before an independent authority. Tribunals tend for that reason to encourage an adversarial approach, although they normally have some power to gather evidence themselves and to conduct their own enquiries.
Another main variable in setting procedures is the nature of the legal standards. Are they straightforward and easily applied, or do they give rise to complex issues requiring skilled legal argument? Interpreting the revenue statutes, for example, will be rather different from deciding whether the conditions for awarding a driving licence are satisfied. The nature and extent of discretion will also be an important factor. Where there is discretion, the shape of procedures will depend on whether it is a judgment about the person’s situation—does he need a welfare supplement, or is he fit for release—or whether it is more clearly a matter of policy—what course is best followed, when should subsidies be granted, or what should the policy be as to the size of schools. Indeed the various factors discussed in section 8.4.4 will be important in matching procedures to the standards particular to each context. A third guiding factor in the practical design of procedures is the principle of proportion. 20 Considerations of fair treatment have to be reconciled with matters of efficiency and cost. The two will coincide to a large extent, but there may be points where the concern for fair treatment would require more extensive procedures than can reasonably be borne by the society. In the earlier discussion, we saw that this is a difficult issue to which there is no completely satisfactory solution. The best approach is to invoke a principle of proportion between the relative importance of the interests at stake and the level of procedural protection. This will have direct, practical application in the design of procedures.
A further factor of special relevance is the context. The context is relevant in a functional sense. The police officer considering whether to exercise his power of arrest in the heat of an incident is clearly different from the magistrate deciding in the quiet of the court what sentence to impose. The fair treatment of the suspect by the police officer is no less important than his treatment by the magistrate, but the procedures suitable to ensure fair treatment in each case are very different. The police officer cannot be expected to hold a judicial-like hearing about whether he should arrest or not. Nevertheless, it is important that the suspect be treated fairly and alternative procedures for that purpose need to be in place. The criteria for arrest should be clear and public; where unofficial guidelines as well as official rules are laid down, they should be known; the scope for review after arrest to ensure a proper exercise of powers is important; and indeed the very education and training of the officer will be a key factor. The magistrate, on the other hand, should proceed differently, for here we expect a judicial process based on evidence and argument from the parties, a careful weighting of factors, and a reasoned judgment. A similar analysis can be applied to other contexts.
The context of an administrative power is also relevant in a social sense. Our perceptions of different areas of authority are greatly influenced by social understandings, which are in turn the products of history and education. An example is the attitude of the public to closed institutions like prisons and hospitals for the mentally handicapped. Perceptions of such institutions have changed in recent years, and as those perceptions have changed, our view of fair treatment and fair procedures has also changed. Bargaining at pre-trial stages between the prosecution and the defence is another case in point. After refusing to believe it went on at all, we now recognize its existence, but without so far accepting that this practice, which appears to be widespread, raises important questions of procedural fairness. Legislators, lawyers, and courts are content that such procedures should be left to the discretion of the prosecuting authority. Such an approach is unsatisfactory and the next step will be to realize that this pocket of potential arbitrariness and unfairness must be brought into line with general principles of fair treatment. Other examples are not hard to find, but enough has been said to demonstrate that the practical design of procedures is influenced by social attitudes which will often impede the full development of a sense of fairness.
A final factor to mention in the practical design of fair procedures is methodological, that is, whether to have general procedural rules or to leave the matter to be determined on a case-by-case basis. An example is the representation of prisoners in disciplinary proceedings within the prison. The present position is that the governor should decide in each case whether representation is necessary to ensure fair treatment; representation is then sometimes considered necessary, at other times not. An alternative would be to adopt a general rule that representation be allowed, without having to justify it in each set of circumstances, as is the case with criminal charges before a court. Each approach has advantages and disadvantages. On the one hand, a piecemeal, incremental approach would seem most suitable in extending procedural fairness to varied, administrative contexts. On the other hand, general procedural rules provide greater certainty and security, and avoid the difficult task of judging procedural needs in specific cases. General rules also help to boost confidence in the procedural regime by showing that people are being treated consistently. In the end, there is no necessarily best method, but the advantages of moving towards more general procedural rules outweigh those of a more particularized approach.
The courts in the United Kingdom and other common law jurisdictions have developed a general principle of procedural fairness independently of statute. The principle is that any administrative authority, exercising powers which affect the rights or interests of particular persons, must do so according to fair procedures. The precise requirements of the principle depend very much on the circumstances and the context. The principle is usually invoked by an aggrieved person by way of judicial review of an administrative act or decision. It may be used to supplement statutory procedures, or to generate procedures where the statute or regulations made under statute are silent. Traditionally, the demands of procedural fairness were thought to be adequately provided for in the rule that one ought to be heard before being prejudiced and the rule against a biased decision-maker. It is now recognized that those rules are expressions of a more fundamental principle of procedural fairness.
The object of this section is to give a general account of the judicial approach to procedural fairness. The role of the courts on the procedural landscape may seem rather limited compared with Parliament, administrators, ombudsmen, and various other bodies. Judicial review is sporadic and unsystematic, responding to complaints in particular cases rather than designing general structures. Nevertheless, the number of cases going to the courts is significant and the judicial influence over doctrine is substantial. 21 Specific cases offer the courts an opportunity to formulate more general principles, and it seems that many of the ideas about procedural fairness now taken for granted by Parliament and administrative bodies owe their origins to judicial decisions. Now doctrine is one thing and administrative practice another, and just what impact judicial review and judicial doctrine have had on the administration is hard to judge. Whatever the answer (and I shall return to this point), the courts are closely involved in procedural matters. 22 The task in this section is to sketch the general nature and basis of that involvement, while more specific doctrines will be considered in later chapters.
The history of judicial review of administrative bodies is still rather sketchy, but we know that the English courts have exercised some supervisory jurisdiction from the earliest times. The two aspects of natural justice referred to above, hearing and bias, are amongst the earliest grounds of judicial review. They owe their origins to the common law courts, and have long been regarded as the two main pillars of due process and procedural fairness. In more recent years, the courts have made two major advances. For the one part, they have moved from the two rules of natural justice to a general principle of procedural fairness; while for the other part, they have extended that principle to apply generally to administrative processes. These advances have not come easily. The courts resisted for some years the idea that natural justice should extend beyond judicial or quasi-judicial processes. In Ridge v. Baldwin, 23 however, the emphasis shifted from whether the process was judicial, using the term in a rather technical sense, to whether it affected a person’s interests. Once that step was taken the way was open for natural justice to apply to the many different forms of administrative process. The issue then centred on what kinds of interests were to count in attracting the protections of natural justice. The general approach to that issue has been to define interests broadly but not without limits. 24
With the extension of procedural fairness to a wider range of administrative processes, it was soon evident that the rules of natural justice as traditionally stated were not always suitable. What suits in judicial, trial-like proceedings, might not fit in many administrative contexts. One course open to the courts would have been to adjust the two rules to fit the special features of administrative processes. To some degree that has happened, but more importantly the courts began to talk about a general principle of procedural fairness, to apply in all cases, with the content to be determined according to the circumstances. 25 If the question were whether a prisoner should be heard by the parole board, or the residents of an old people’s home should be consulted before the council closed it down, or whether there should be an oral hearing rather than written representations, the answer should be found by considering what procedures would be necessary in each situation to ensure fair treatment. The approach can be expressed in different ways: the authority must perform its duties fairly; 26 the procedure must be sufficient to achieve justice; 27 or there must be such procedural safeguards as will ensure the attainment of fairness. 28 Expressions like these suggest a substantive part and a procedural part: the substantive part is that the decision be made properly according to legal standards, while the procedural part is that procedures suited to that end be adopted.
An obvious strength of this approach is that all areas of administration are now, in principle, subject to the requirements of procedural fairness. It is no longer an excuse to say that an authority is exercising discretionary powers, or that it is the decision of a minister, or that it occurs in a context, such as a prison, which is exempt from procedural principles. Exceptions to the principle might still be made, but only where there are strong reasons for doing so; indeed, the presumption is that the general duty to follow fair procedures will apply unless exceptions can be justified. The practical application of the principle can still be uneven, with various factors influencing a court’s appraisal of what procedures are needed. However, problems of application should not be allowed to undermine the general normative principle of procedural fairness. A second strength of the contemporary approach is that it rightly sees the traditional rules of natural justice as specific applications of a general duty of procedural fairness rather than its essence. It is now acknowledged that procedural fairness is a dynamic principle from which other doctrines, besides the hearing and bias rules, can be derived. Procedural fairness, in other words, far from being exhausted by those rules, embraces any procedural issue which is relevant to treating a person fairly. The third feature of this approach is that it allows procedures to be judged in their context and according to how important and effective they really are in securing fair treatment. This in turn should allow a more accurate assessment of whether the procedures followed by an administrative body are sufficient to ensure fair treatment. Instead of the duty of procedural fairness triggering specific rules of natural justice, it now initiates an inquiry into whether the procedures followed by an authority were adequate in the circumstances.
Within this general approach, let us now consider a number of more specific issues: (i) the relationship between fair treatment and fair procedures: (ii) the tension between having detailed procedural rules and approaching each case on a discretionary basis; (iii) the judicial construction of procedures; (iv) the competition between costs and fair treatment; (v) statutory procedures; and finally (vi) the impact of judicial review on administrative procedures.
The first of these, the relationship between fair treatment and fair procedures, is implicit in what has already been said. The courts begin with the notion of fair treatment as treatment according to the legal standards prevailing in an administrative context. They recognize that the legal standards will be a mixture of outcome-based and non-outcome-based; the question then is what procedures are necessary to secure treatment according to those standards. Procedures are fair to the extent that they contribute to that end. This approach can be seen running through the modern, as well as many of the ancient, cases. It is not often made explicit but, I suggest, is the best way of understanding the judicial approach. Just such an approach appears to have been in the mind of Earle CJ when, considering the advantages of a local authority’s hearing the applicant before acting against him, he said: ‘I am conscious of a great many advantages which might arise in the way of public order, in the way of doing substantive justice, and in the way of fulfilling the purposes of the statute.’ 29
The court’s approach can be illustrated further through the following examples. In R. v. Board of Visitors of H.M. Prison, ex parte Hone, 30 the question was whether a prisoner appearing on a charge before a Board of Visitors was entitled to legal representation. 31 The House of Lords held that, although the duty of natural justice applied, in the circumstances there was no established legal right to have a solicitor. The accused’s right to counsel in a criminal trial had not been extended to the present situation and, therefore, the claim had to be judged on whether legal representation was needed in these circumstances. That in turn was to be judged on whether representation was necessary to ensure the right outcome, namely, that the rules were properly applied to an accurate finding of the facts. The reasoning was that, as there was no dispute about the law, and as the prisoner was able to present his own case, there was no need for a solicitor; the Board of Visitors could reach the right outcome on the law and facts without the assistance of a lawyer. And if it could reasonably be concluded that the right outcome would be reached, then the prisoner had been treated fairly. The practical judgment that the prisoner was capable of properly presenting his own case might be questioned on empirical grounds, but the general approach is correct. If the prisoner were judged accurately in accordance with the rules relating to disciplinary offences, then he would be treated fairly under the law; provided the procedures lead to that result (and subject to other relevant values), the principle of procedural fairness would be met.
Once it is realised that the test of fair procedures is whether they lead to fair treatment, the approach of the courts in Hone and many other cases makes good sense. The enquiry in each case is whether, as a matter of practical judgment, the procedures lead to fair treatment. Indeed, the courts have a better grasp of the issue than many of their critics; for while the former regularly affirm that the object of procedures is to ensure fair treatment according to law, it is hard to find a critic who makes clear what he or she thinks is, or should be, the test of procedures. 32 But let us consider one or two more cases. In Hone the legal standards were clear and settled so that it made sense to talk of a correct result or an accurate outcome. The same general approach applies when the standards are less settled and the decision is discretionary. It is then less appropriate to think of a correct outcome, since discretion usually indicates a certain amount of choice in the decision-maker as to what should be done. Nevertheless, the law has developed standards about how discretionary decisions should be made: the authority must consider the merits of the case; it must address itself to relevant matters and exclude the irrelevant; it must not act arbitrarily or with prejudice; it must act in good faith and for the right purposes; and its decision must be reasonable. 33 These are the standards of fair treatment in discretionary contexts. They do not say what the outcome should be, but a person whose case is dealt with in this way is treated fairly. Ridge v. Baldwin illustrates the point well. 34 There the Watch Committee had a number of options open in deciding what action to take against the Chief Constable. Its duty was to examine and decide on the merits; provided that was done, the Chief Constable would have been treated fairly. The question for the courts was whether a hearing was necessary to ensure that the merits were properly considered. 35
The point is further illustrated by the case of McInnes v. Onslow-Fane, 36 a case which has had its share of criticism. The issue was whether the procedures followed in refusing the grant of a boxing manager’s licence were fair. Megarry V-C asked, first, what conditions had to be met for the proper exercise of discretion and, secondly, whether the procedures followed were appropriate to that end. The discretion here was wide and unstructured; it was properly exercised, he thought, if the decision on the merits was honestly taken, without bias, and not in pursuit of a capricious policy. These conditions had been met by the procedures followed and the claim that there should have been a hearing was rejected. Not all aspects of the judge’s reasoning are convincing. How, we might ask, could the merits have been properly considered without a hearing of some sort which would have enabled the claimant to put his side of the story. More importantly, the judge’s conception of a proper exercise of discretion may be drawn too loosely, it being arguable that the licensing committee should have examined the merits more closely than would be required by the above conditions. 37 Discretion does raise a number of problems about precisely what is required for its valid exercise; notice, however, that they are problems about what constitutes fair treatment, that is to say what are the standards of fair treatment in such cases; only when they have been resolved can the question of procedures be considered. I shall return to this point about discretion; I wish to suggest, however, that Megarry’s general approach of dividing the issue of fair procedures into two stages, as set out above, cannot be faulted.
Courts do not often theorize about what they are doing, nor when deciding particular cases should they be unduly concerned with the overall scheme of things. Nevertheless, their approach to procedural fairness fits closely the theoretical outline developed earlier in this book. Their understanding of the relationship between procedures, fairness, and authoritative standards is coherent and compelling. They recognize that fair treatment of persons is at the heart of government and administration, while at the same time accepting that Parliament to a large extent dictates the standards of fair treatment. Not entirely, however, for the courts also have a significant role in their creation and development. The standards of judicial review, such as the principles against unreasonableness and irrationality (or arbitrariness), and the principle of relevance, are to a large extent both judge-made and important elements of fair treatment. We might quibble about whether these are standards of substance or procedure, the orthodox view being that courts in exercising review are concerned with process and procedure rather than substance. 38 Such concerns, however, are both confused and largely pointless, since the distinction between substance and procedure has been shown to be elusive and unhelpful. 39 The better approach is to ask, first, what are the standards of fair treatment and, secondly, what procedures (institutions, mechanisms) are necessary to give them effect.
This is not to say that the courts in judicial review are licensed to decide whether the original decision was fair in some full and more complete sense. Lord Denning’s view that a probationer police constable, who was dismissed by the Chief Constable, should not only be given a fair hearing but was entitled also to a fair and reasonable decision, was firmly rejected by the House of Lords. 40 Judicial review, it was said, is concerned with the decision-process not the substance of the decision itself. However, as T. R. S. Allan has remarked, that is only partly true, 41 the full truth being that any strict distinction between procedure and substance is conceptually insupportable. In practice, the courts may and do concern themselves quite legitimately with some aspects of substance but not others. The real issue is how far the courts should involve themselves in the merits of administrative decisions, and they have created doctrines which help to define the boundaries. Ultimately, the proper role of the court in exercising review is a matter of constitutional debate; within that debate, the distinction between substance and procedure has a minor role.
We need not enter into that debate here, except to note two senses in which courts may legitimately be concerned with substantive matters, and, in particular, substantive issues of fairness. The first is that indicated above, they may be responsible for creating and developing certain standards which bind administrative officials in the exercise of their powers. That already happens to some degree and some jurists would like to see it happen more. It has been suggested that the courts ought to be more active in creating standards of equal and consistent treatment, proportionality, and certainty. 42 The second sense is that, when judicial review is brought, the courts have the final decision as to what the standards of decision-making are or ought to be in that area of administration. That task is implicit in deciding procedural issues, for unless the courts have a view as to what the standards of fair treatment are, they cannot decide questions of procedural fairness. This is not to say that the courts are exclusively responsible for creating the standards, since some will be stipulated by statute. It is true, nevertheless, that many of the more general standards determining the grounds and scope of review are the creation of the courts. This unavoidably involves the courts in substantive matters and in a sense of substantive fairness, not a complete sense of total fairness, but the middle-order sense by which people should be dealt with according to authoritative standards. However described, their responsibility in judicial review takes the courts far beyond a thin sense of procedural fairness.
One drawback of current judicial attitudes is that the courts have to assess the adequacy of procedures according to the context of each administrative process, with the old certainties of natural justice having been put aside in favour of a more individualized and discretionary approach. Some new rules have become settled, but in the main the courts have to decide as they judge best what procedures are necessary for fair treatment. Amongst commentators this has caused concern. 43 It seems to allow some interests to have better procedural protection than others, with some types of power being subjected to stringent procedures and others escaping more or less unrestricted. Extraneous factors may then be influential and a lack of even-handedness from one context to another may appear. Moreover, the nature of the enquiry tends to be highly contextual and particularized and does not encourage the formulation of general procedural rules. Some critics even talk of a crisis in the judicial approach, with rampant discretion, threats to the autonomy of law, and crippling procedural costs on administrators. 44
While such cries of alarm can be exaggerated, there is a need to look closely at the way the courts interpret the principle of procedural fairness. The direction judicial discretion has taken is a matter of concern, but unfortunately no comprehensive study of judicial review in this area has yet been made. 45 Some of the influences on judicial discretion are considered in the next section, but here one or two general points about the judicial role should be considered. In the first place, while the courts exercise discretion, it is not discretion in the strong sense that the judges simply choose whatever procedure they think desirable. It is discretion only in the weaker sense that the court has a principle to apply and it must judge what the principle requires in the circumstances. 46 The principle is that the decision should be made according to such procedures as will lead to fair treatment of the person affected. Fair treatment in turn means treatment in accordance with legal standards. We have seen what that means: that the facts will be accurately determined, the legal standards properly interpreted and applied, and, where there is discretion, that the case will be properly considered according to relevant factors. The task of a reviewing court is to assess the procedures against those standards of fair treatment, and to decide whether the procedures followed are likely to have led to fair treatment in the case in point. Judgment has to be exercised, but it is judgment guided by principle and directed at clear purposes. The courts fail on occasions; they may be mistaken, or one might disagree with them, but that is the nature of a practical judgment and should not be mistaken for unfettered discretion. Indeed, far from being unfettered, the discretionary element here should be, and in the main is, highly principled, being concerned with the application of standards and the upholding of rights to fair treatment.
The second point of concern is that the approach of the courts undermines the rule of law which, it is supposed, means decision-making by applying general rules. Arguments based on the rule of law in this narrow sense are not only quaint, but beg a number of jurisprudential questions, such as how different rules are from principles and whether decisions can ever be made just by applying rules. Quite apart from the difficulties of distinguishing rules and principles, there is no reason to think that a decision based on principle is any less compatible with the rule of law than one based on rules. The rules of natural justice themselves have to be interpreted and applied according to the context: what sort of hearing is required, what does bias mean in this situation? And we need only glance at the American case law on the meaning of the notice and hearing rule to see that such questions are anything but straightforward. 47 In any event, the difference between applying rules and deciding on principle is at best methodological, and it should not be taken for granted that one leads to fairer procedures than the other. The well-known debate in other areas of discretion over the relative advantages and disadvantages of precise rules and open-textured principles is applicable here. Any conclusion that fixed procedural rules produce higher levels of fairness than a discretionary judgment guided by principle could be justified only after extensive empirical study of the cases; such a study has not yet been undertaken. In any event, the very dichotomy is flawed, since no clear distinction exists between having rules on the one hand and something else on the other hand. Rules have to be interpreted and often contain open-textured standards; they may be departed from, selectively applied, or be subject to exceptions. Finally, it is typical of any changing area of law that rules give way to principles, but then, after a period of transition, new rules begin to emerge. 48 That is the very method of the common law and there is no reason to doubt that, over time, settled procedural standards will emerge in various contexts. Some such standards can already be seen: for example, it is an established standard that a person whose affairs are being investigated is entitled to know the general findings and to make representations in relation to them. 49 Many other examples could be cited, but there is no reason to think that the overriding objective should be to develop comprehensive and detailed procedural rules. The strengths of a piecemeal approach are not to be overlooked and, here as elsewhere, a continuing flux between constancy and change should be welcomed.
When judicial review of procedural fairness is understood in this way, some of the qualms about judicial discretion should be allayed. But not all, for when the space between the general principle and a specific judgment is large, even a principled process can appear to be arbitrary and subjective. Several solutions are possible. The courts could defer more to the judgment of Parliament and administrators on procedural matters and intervene only in extreme cases. Such deference would have advantages and disadvantages, but in general there is no reason to think that either Parliament or administrators have a better or more measured view of procedural fairness. Recent history would suggest that the courts have often taken the lead in raising the standards in areas where Parliament showed no interest and administrators feared to tread. The position would be different if Parliament were to provide more complete schemes of statutory procedures, or indeed even if administrative bodies themselves were required to produce procedural codes for their respective areas. Neither is generally the case, although reflection of the issue raises the wider question of a code or codes of administrative procedures, a matter which is dealt with in Chapter 10.
Since there is little doubt that the courts will continue to be actively involved in questions of procedural fairness, the issue is how certain intermediate steps and more constant beacons might be introduced into their judgments. One solution which appeals to administrative lawyers is to structure those judgments through guidelines in the way often seen in areas of open-ended or discretionary powers. The case for this is put well in an article by B. Dyer. 50 He argues for a structured process in deciding in each context what procedures are needed. A good example of the approach is found in the judgment of Webster J in deciding whether a prisoner should have been allowed legal representation before a Board of Visitors. 51 The judge stated a number of factors to consider: the seriousness of the charge and the penalty; whether points of law would arise; the prisoner’s capacity to put his own case; whether the prisoner would be able properly to prepare his case, have adequate access to witnesses, and be able to call them at the hearing; the need for reasonable speed; and the need for fairness as between prisoners, and as between prisoners and prison officers.
A structured process of this kind does not eliminate the need for reflective judgment, incrementalism, or discretion. Its virtue is in providing factors to take into account; it is reasoned and it is open, characteristics which are, after all, the signs of a sound, practical judgment. Such judgments become precedents and may then become the basis for settled procedural rules, although in many cases it will be desirable to retain the capacity to decide on the merits without being unduly restricted by what has gone before. The focus should be, however, on developing guidelines and giving them a certain generality. We may conclude that, problematical as it may appear, the judicial involvement in issues of procedural fairness is permanent and important, and capable of being structured and principled.
How then do the courts decide whether the procedures followed by an administrator meet the demands of fairness? The courts themselves have offered some guidance on this and a good starting point is the judgment of Woolf LJ in Lloyd v. McMahon. 52 The issue was whether the district auditor had followed fair procedures in investigating the affairs of Liverpool City Council and in finding that certain losses were due to wilful misconduct of a number of councillors. The councillors made written representations to the auditor, but did not ask for and were not given an oral hearing. Amongst the various issues, the one of present interest is how Woolf LJ came to the conclusion that, even without an oral hearing, the procedures were fair.
Three factors by which to guide the assessment were identified: the function being performed by the official; the nature and consequences of the decision; and the matters in issue. 53 By function is meant the nature of the task, and the system of classification developed earlier may help at this first stage. Here the task was investigatory, but with a distinct adjudicative element in drawing conclusions from the investigation. Other cases may fall into other categories, such as routine administration, adjudication, or policy-based discretion. This initial classification depends on a close analysis of the statutory scheme, and is, moreover, only an initial classification which directs us to one or other grouping without revealing much about the more detailed procedures within it.
Woolf LJ did not offer a systematic analysis of the other two factors, but it is not too difficult to reconstruct their meaning. The second, the nature and consequence of the decision, partly repeats the first, but is distinctive in highlighting the consequences, presumably for those subject to it. An assessment of the consequences has two parts: first, the rights or interests at stake and, secondly, the effect an exercise of authority has on them. 54 Here the interests at stake were the reputations, livelihoods, and financial interests of the councillors, which might be severely affected by the auditor’s actions. The third factor, the matter in issue, is obscure and also partly repeats aspects of the other two. But its significance may lie in referring to the powers of the authority, that is, to the precise legal standards governing its actions. If this is what is meant, then it is significant, since those standards form the basis of fair treatment and a close analysis of their meaning and scope is essential in determining what procedures are required.
In applying these factors, the auditor had to inquire into and make a finding about financial matters where important interests would be seriously affected. He advised the councillors of the evidence before him and of his provisional judgment. He received and took into consideration written representations from the councillors, but ultimately did not adopt the facts asserted in them. After considering these matters, Woolf LJ concluded that, on balance, the procedures were fair and that an oral hearing was not required. In the House of Lords, Lord Bridge added two more factors: the nature of the authority and the statutory framework, 55 although both appear to be included by implication in the factors already considered. This is one of several attempts by the courts to state the relevant factors in judging the fairness of procedures. 56 All are helpful but none is entirely satisfactory and all stop short of stating precisely why the different factors are relevant or how they are to be assessed.
To the extent that the analysis in such cases fails, it is because the underlying normative premise is not made clear. However, the premise which makes most sense of the judicial approach is exactly that put forward in my earlier analysis, namely, that each person affected by an administrative decision should be treated fairly and that the point of procedures is to lead to fair treatment. The relevant factors then help, first, to clarify what constitutes fair treatment in the particular case and then, secondly, to point to the kinds of procedures necessary. The first part is a necessary prelude to the second, for it is only by elucidating the standards of fair treatment that a judgment can be made whether the procedures are appropriate. An examination of the statutory context, of the nature and extent of the statutory powers, will help in identifying the normative standards according to which decisions should be made and activities conducted. It will also be the basis for practical judgments as to what procedures are needed for proper and accurate application of those standards. The rights and interests at issue are then relevant in assessing whether the procedures are satisfactory in holding the risk of error at the right level. 57
Now while this approach to determine the content of fair procedures is sound in principle and generally reflects judicial attitudes, the question arises whether it works in quite that way when put into practical contexts. The suggestion is sometimes made that other variables, besides those officially declared and normatively supportable, influence judgments about procedure. One charge is that the courts do not apply the approach even-handedly, but give more procedural protection to some interests than others. Interests of a financial or property kind seem to attract more protection than interests in personal liberty or well-being. Similarly, categories of people seem to be treated differently; students, prisoners, aliens, and jockeys, have fared rather badly even when vital interests are in issue. There might be good reasons for this. The mistreatment of jockeys, for instance, might be the sign of a commitment by the courts to leave questions of procedural fairness to the sporting authorities. However, the difficulty with criticisms of this nature is that they depend on reading into judgments normative standards about how different people and groups should be treated, even though those standards play no express part in the reasoning of the judges themselves. There may well be hidden premises which affect the way courts approach procedural issues, premises based on how a person, his interests, or the group to which he belongs, should be viewed by the courts. This would not be surprising since our perceptions of different people and groups, our ranking of interests, and our understanding of what constitutes fair treatment, are deeply tied to culture and context. Considering the social attitude to prisons and prisoners, for example, or the social ambivalence about students, or the general perception of aliens as outsiders and inferiors, it isto be expected that the judicial construction of fair treatment and the procedures of fair treatment will be influenced accordingly. One of the tasks of law is to set standards which transcend cultural categories and introduce a certain universality. The different treatment of people might be taken as normal practice, with equal treatment according to general categories the exception. Whether that really is true in cases of procedural fairness, however, depends on a fuller analysis of judicial decisions than has yet been made.
We can only speculate about the effect other factors may have on the courts’ approach to procedural fairness. The nature of the administrative body was mentioned as relevant by Lord Bridge. 58 He did not elaborate, but it is plausible to expect that the attitude of the court to the decisions of a minister of state, a parole board, or a tribunal will be different. Another factor might be the kind of discretion an authority has, or at least the court’s characterization of that discretion; for what constitutes the proper exercise of discretion will in turn influence the shape of procedures and the dictates of fairness. These factors and others may well infiltrate the normative framework within which judgments of procedural fairness are made; but again, until a careful study is made of different areas, any conclusion must be tentative.
It has been possible in this section only to touch on a major and somewhat contentious issue in the judicial construction of procedural fairness. The discussion appears paradoxical: on the one hand, it is clearly right in principle that the fairness of procedures be assessed in the context by which an authority acts and exerts its powers; on the other hand, such an approach lends itself to the influence of extraneous factors, of invidious social and cultural categories and conventions. The paradox cannot easily be resolved; the way forward is to stand firm on the principle at issue, while at the same time trying to gain a better understanding of how procedural issues really are determined and of how extraneous and unacceptable influences can be overcome.
One criticism sometimes made of the courts is that, by imposing additional procedures on administrative processes, they force agencies to spend more of their scarce resources on procedures. A hearing may be required where it was not provided for in the statute, or resources may have to be directed to supplying information or reasons. In cases like these, judicial decisions can certainly have an impact on resources, but there is little evidence as to exactly what the impact is. A study of the cases, however, suggests that the courts are cautious in imposing extra procedural burdens, so that the image of administrators groaning under the burden of judicially-imposed procedures is unrealistic. Where a procedure is required by the courts, the additional costs are marginal and can be accommodated by adjustments in the use of existing resources for procedures. Nevertheless, the attitude of the courts to the costs of procedures is an important matter of both principles and practice. The judges themselves sometimes make direct reference to the issue. An increase in the costs of administering the parole system was put in the scales by the Court of Appeal when considering what procedures to follow in deciding parole. 59 The House of Lords referred to the extra time and money required if prisoners, charged with offences before the Board of Visitors, were allowed legal representation. 60 Amongst the different kinds of costs that might be relevant—direct, social, and moral—the courts seem to have in mind only direct costs, the assumption being that every effort should be made to keep direct costs to a minimum. The difficulty is that in the practical world the different kinds of costs are likely to be in competition. In the light of the earlier discussion of that issue, 61 it is enough to note that a reduction in direct costs, by increasing the risk of error, is likely to increase social and moral costs. Social costs refer to the failure to achieve the goals for which the agency has been given power, while moral costs refer to the failure to treat the person fairly. When the courts say that direct costs should be taken into account, they mean that a balance has to be struck between the principle of fair treatment and the social goal of keeping down the direct costs.
The issue is a practical one, but it should be approached in a principled way. A principled approach would mean that a court should consider, first, what procedures are required for the proper application of authoritative standards, and then secondly, whether any adjustment has to be made according to the proportionality principle. Under that principle, the relative importance of different rights and interests should be taken into account and then linked to the resources available for their protection. The result may be that fewer resources are available than would be needed to ensure the proper application of standards. The levels of fair treatment then have to be scaled down to match the resources available. Any person whose interests are at stake has an initial right to such procedures as are necessary for proper application of the authoritative standards. If the resources are insufficient for that, then the right in practice has to be reduced in accordance with the principle of proportion. It follows that it is not a conclusive argument against additional procedures that they would impose extra costs on administrators. If the additions are justified within the principles above, then the person affected has rights to those procedures, the court has no discretion to deny the right, and the costs should be borne by the agency. This does not rule out considerations of economy, since society’s commitment to each person is only to the minimum procedures necessary to apply the standards of fair treatment. If a less elaborate and more economical procedure is available, the courts are justified in allowing it, provided they are satisfied that it leads to proper application of the standards of fair treatment. If, for example, a hearing process based on written submissions rather than an oral hearing would be enough to secure the proper application of authoritative standards, there would be no need to incur the extra costs of an oral hearing. Indeed, one of the strengths of the present approach is that, by laying bare the ends which procedures are meant to serve, the proper role of considerations of economy in designing and judging procedures can be understood.
Whether the courts in practice deal with the costs of procedures in this way is not clear; it is not clear because they are largely silent on the matter. The silence may be attributable to their being confident that any procedures they impose are within the two principles and, therefore, are justified. The lack of a problem would explain the absence of discussion. This may be a plausible account of most cases. 62 However, when courts do occasionally raise the issue, their incautious language leaves the impression that issues of cost are being treated rather differently. The suggestion was made in Hone that in determining whether legal representation is required, the costs should be taken into account. If that is the right interpretation of Lord Goff’s reasoning, it is incompatible with the present approach, according to which the first question to ask is whether legal representation is necessary for the proper application of standards. Costs are not relevant at this point. If the answer is that the prisoner can properly defend himself, then representation is not needed and costs are saved. But if representation is necessary for an accurate outcome, then a presumptive case based on fair treatment has been made. It is only then at the second stage that the court should consider whether the added costs of the procedures would be outside the proportionality principle. Being marginal costs, they should normally be within it. Occasionally, a claim to procedural innovation—to a full oral hearing, for example—may have to be refused for lack of resources. To approach questions of cost in this way is not only correct in principle, but also offers the courts, as well as Parliament and administrators, sound practical guidance.
The main sources of procedural rules are statutes, statutory rules by way of delegated legislation, and the informal rules of administrative bodies. 63 The role of the courts in relation to procedures is quite different; when they intervene in administrative processes, their task is not to design procedures afresh, but to determine whether the existing procedures meet the prescriptions of procedural fairness. 64 When the procedures are found wanting, the courts will declare so and usually the decision or act in issue will be quashed or declared invalid, and sent back for re-consideration by the administrative body. 65 The court’s decision is binding only in the specific case, and while it might be hoped that such decisions will lead administrators to adapt their procedures generally, the effect of judicial pronouncements on administrative procedures is something we know little about. 66
However, the relationship between the courts, the principle of procedural fairness, and statutory procedures raises some important issues. The general principle is that the courts will make their own assessment of statutory procedures according to their own principles of fairness. If on that test the statutory procedures fall short, a court will require that they be supplemented in whatever way is necessary. 67 Where an oral hearing or the right to legal representation, for example, is judged by the courts to be required under the fairness principle, but is not provided for in the statutory procedures, the courts will intervene. However, the courts will respect a scheme of procedures which has been expressed in detail, whether by statute, delegated legislation, or administrative rule, and they will often be persuaded to regard the scheme as adequate. Since fair treatment does not normally dictate any fixed set of procedures, but allows for variation in procedures and a significant element of judgment at the margins, it is then sensible for the courts to respect attempts by Parliament and administrators to devise a scheme of procedures and not lightly to impose their own views. 68 The final test is still whether the statutory procedures meet the common law standard of fairness, so that if a court concludes that the test is not satisfied, no matter how detailed and comprehensive the statutory scheme may be, it is likely to intervene.
Another aspect of the relationship between the courts and statutory procedures occurs when the administrative body fails to comply with the statutory rules. If the procedures are set out in the statute itself, the duty on both the administrator and the courts to comply is clear. Where the procedures derive from rules made under delegated legislation, the position is still fairly clear, since delegated legislation has the force of law and binds courts and administrators. However, the position is not quite so straightforward. For example, the Prison Rules governing order and discipline in prisons are made under delegated legislation, but not all their provisions, including procedural elements, are enforceable against the prison authorities. 69 It depends on the rule in question. A court will judge whether a rule is one of weight and substance, which appears to be a way of saying that it creates rights in the prisoner. Whether rights are created is a matter of interpretation. If the rule does not create statutory rights in the party, then failure by an administrative body to follow the procedures laid down by it will be actionable only if it leads to procedural unfairness according to common law principles. Many statutory rules are likely to be treated in this way on the basis that they are technical, directory, or advisory, rather than mandatory or rights-creating. Substantial parts of the Immigration Rules governing deportation procedures are characterized in this way, so that the bindingness of any one part will be judged on whether it is a requirement of the general principle of procedural fairness. 70
The attitude of the courts to procedural rules created by the administrative bodies rather than by Parliament gives rise to another set of issues. Such rules are usually made under express statutory authority, but in the absence of express authority, the administrator might make its own procedural rules as a necessary step to carrying out its statutory powers. Rules made under express statutory authority may be regarded by the courts as binding, but whether they are will depend on how closely they resemble delegated legislation and whether they are laid before Parliament. Rules made without express statutory authority have no clear legal status, but are likely to be considered guidelines adopted by the authority for its own benefit. The courts accept that an administrative body is entitled to draw up procedural guidelines as an incident of its statutory powers. 71 How the courts will then regard those guidelines is not straightforward, but in general they are not regarded as generating procedural rights. If self-created procedures are adequate for their purposes and for achieving fair treatment, they should be respected by the courts. If, however, self-created procedures fall short of common law principles, the courts are likely to insist that the shortfall be remedied. Failure by an administrative body to comply with procedural guidelines will have no direct legal consequences, but will be judged according to whether the procedures followed were, nevertheless, fair. One further point to note is that the guidelines will sometimes be sufficiently serious and settled for the courts to hold that expectations have been created in those subject to the authority’s actions. If the expectation is that those procedures should be followed, the authority will be held to the procedures as laid down. 72
Judicial review has in common with other forms of recourse that its primary object is to decide the specified case before the court. At the same time, however, and again in common with other forms of recourse, it has the wider dimension of influencing the administrative body in a more general way. If a court rules that a certain procedure is required in the case in hand, then the implication is that it ought to be followed in all other, similar cases. A court ruling, in other words, not only decides the particular case but may set a more general normative standard to be acted on by administrative agencies. The extent to which a ruling has general application beyond the particular case is not always easy to determine, but should be approached in accordance with normal principles of interpretation. The courts themselves express different views as to how far a judgment on procedural fairness should be extrapolated beyond the particular case. Ultimately it is a matter of interpretation in each case and some judgments at least will be the normative basis for generalized procedural standards.
Since the courts do not often make direct reference to the standard-setting aspect of judicial review, it is not always clear what part it plays in their deliberations or how much importance they attach to it. But how much importance courts attach to it in fact is not the same question as how much they should, and how much they should is a matter of principle rather than judicial discretion. If a certain procedure is held to be necessary for fair treatment in one case, then the same should hold for similar cases, and the parties involved in those similar cases should have a justified claim to the same procedure being followed. 73 Where judicial decisions create general legal standards, they create new law and new rights, in this case procedural rights. It is not then a matter for the agency to decide how it will respond to a judicial ruling; where the ruling has a generalized element, the agency has a legal obligation to comply with the law and to adjust its procedures accordingly.
While the normative principles are clear enough, the practical effects of judicial rulings on administrative procedures are largely unknown. In an early study, T. Prosser examined the impact of an important case of judicial review relating to entitlement to social security. 74 The impact was found to be mixed and complicated, but the study is important not least in dispelling any assumption that a standard laid down in judicial review will be assimilated directly into administrative practice. In a later study, based on a number of prominent judicial review cases in which ministers and departments suffered serious reverses, Sunkin and Le Sueur distinguished between the formal and the informal consequences of judicial rulings. 75 The formal consequences were to encourage departments and agencies to be more careful in drafting laws, and in that way to reduce the risk of challenge in the courts. The informal consequences related to ‘the internal, informal, and private world of government departments’. 76 The threat of judicial review, the reality of which was less than imagined by agencies and departments, sparked a flurry of activity at Whitehall.
The Cabinet Office reacted by publishing a pamphlet called The Judge Over Your Shoulder for circulation within departments. The pamphlet alerted departments of the risks of judicial review and how to reduce them. 77 Its main aim appears to have been to propound a defensive strategy and a measure of its success must be that senior officials can now talk confidently of making administrative schemes ‘judicial review-proof. The strategy is essentially negative, but in so far as it includes greater care in drafting statutes and acting under them according to the principles of administrative law, its negative character has some merit. The government’s reaction also had a positive side. The threat of judicial review may have encouraged better administration and help to improve the quality of primary decisions. Since a very small percentage of primary decisions is taken on appeal or review of any kind, any measures which improve the quality of decisions at that level are to be welcomed. Whether judicial review has that effect is more doubtful. The evidence either way is scarce, but there is little reason to doubt that Sunkin and Le Sueur are right in concluding that those who make the mass of front-line decisions are still ignorant of the most elementary legal principles. 78 If that is the case in general, then it is likely to be the case in relation to procedures.
Without more systematic study of the issue, conclusions of the kind drawn by Sunkin and Le Sueur must be tentative, but they are not surprising. The standards laid down in judicial review are external to the organizational world of a department or agency. And as important as they may be to lawyers and judges, they are but a particle in the crowded universe of the administrative official. Research into organizations has long shown how difficult it is for externally imposed norms to become internalized by those within the organization. Not only are there competing norms of greater immediacy and apparent importance, there are also the imperatives of bureaucratic structure, of scarce resources, and of political pressures from government and ministers. The communication and assimilation of information about judicial rulings is also crucial if they are to find their way into the decisions of primary administrators. To enter into that world and to have an impact must inevitably be an arduous and complex process, achieved through gradual assimilation, through such means as inclusion in manuals and handbooks, by continuing training, and by both internal and external review. Considering that the quality of decision-making often falls well below the most elementary standards, it is not surprising that the refinements offered in judicial rulings must seem remote from the day-to-day duties of an administrator. 79 This is not to suggest that judicial review is unimportant; on the contrary, the courts have a major responsibility for reflecting on the normative demands of procedural fairness and for setting appropriate standards. Nor do I wish to suggest that such standards must remain permanently external to administrative action; a principal object of administrative justice should be to ensure that principle and practice coincide. The point to note is simply that the process of internalization is hard to achieve.