Natural Justice
Natural justice refers to the unwritten rules which developed alongside English common law, to ensure those responsible for making decisions within the English legal system, do so in a fair and unbiased way. Historically, these common law rules were developed mainly by the superior courts to ensure that the inferior courts acted within their powers.
They were subsequently extended to cover bodies exercising judicial powers (such as the courts) and those exercising non-judicial powers capable of affecting the lives of ordinary individuals (such as voluntary associations and professional bodies). The rules of natural justice are not rigid or “engraved on tablets of stone”, Lord Bridge in Lloyd v McMahon [1987] 1 All ER 1118 at 1161. They simply provide guidance for determining whether proceedings are conducted in a way which is fair.
There are 2 main rules of natural justice, the rule against bias (or nemo iudex in causa sua) and the right to a fair hearing (or audi alteram partem). These will be considered below. The remaining Sections will consider the application of these rules and remedies available if they are breached.
The rule against bias
Nemo iudex in causa sua means no man should be a judge in his own cause. This is the most essential requirement in judicial and quasi-judicial hearings. Judicial and quasi-judicial hearings are explained in Section 3. below. They should be conducted impartially and without bias.
It is fundamental that “justice should not only be done but should manifestly and undoubtedly be seen to be done”, R v Sussex Justices ex parte McCarthy [1924] 1 KB 256 at 259, dealt with in more detail below. Jugdes (and their advisors, i.e., clerks) should not be seen to favour one side or the other. They should not allow any financial or personal interests to affect their decisions. If bias is established, the courts have a discretionary power to grant various remedies for breach of natural justice, (dealt with in Section 5. below). Note, the bias need not be actual, the meer hint of lack of impartiality will be enough.
Examples of how the courts approach financial and personal interests are as follows:
Dimes v Grand Junction Canal Ltd (1852) 3 HL Cas 759. Lord Cottenham, Lord Chancellor, was a shareholder in the company appearing before him in court. The House of Lords felt, while there may not be actual bias on the part of the Lord Chancellor, the decision should be set aside. The maxim, no man should be a judge in his own cause, should be held sacred.
R v Sussex Justices ex parte McCarthy. A solicitor acted as clerk in the Magistrates’ court. One particular case before the magistrates involved dangerous driving by McCarthy. Following his conviction, McCarthy discovered that the clerk worked for the same firm representing the other person involved in the incident, in civil proceedings arising out of the incident. When the magistrates adjourned to considered their verdict, the clerk left court with them. However, he did not give them any advice. McCarthy applied for a writ of certiorari, see Section 5. below, to quash (or invalidate) the conviction, claiming the clerk was bias. The court granted the writ. Although he did not actually influence the magistrates, he was connected to the case in the civil action and could not be seen to be acting impartially in the criminal matter.
Metropolitan Properties Ltd v Lannon [1969] 1 QB 577. Lannon, a solicitor, was the Chairman of a rent assessment committee (a quasi-judicial body). The committee fixed the rent of a block of flats belonging to his father’s landlords. He lived with his father. His firm were also involved in negotiating the rents of this block of flats with the landlord. The courts quashed the committee’s assessment as, the situation was likely to lead people to think that Lannon unfairly acted in favour of one side. Lord Denning MR stated, “justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: The judge was biased”, [1969] 1 QB 577 at 599.
The Right to a fair hearing
Audi alteram partem means hear both sides. In other words, no man should be condemned without being heard.
Everyone as the fundamental right: to know the case against them; to be given notification of the hearing; to have the opportunity to make oral representations to the person making the decision; to question witnesses; and to be legally represented where necessary (see Section 4. below). This rule is not confined to decisions of judicial or quasi-judicial bodies, but it also applies to administrative bodies (explained below in Section 3. below).
The most quoted case illustrating the operation of audi alteram partem is Rigde v Baldwin [1964] AC 40. The chief constable of Brighton was suspended from duty after being charged with conspiracy to obstruct the course of justice. He was cleared of the charges, but the judge criticised his conduct. The Brighton police committee subsequently dismissed him, without inviting him to the dismissal hearing.
He was however, invited to a subsequent hearing in which the dismissal was confirmed. On appeal to the House of Lords, it was held that the committee failed to follow procedures laid down in discipline regulations. More importanly, the committee breached natural justice by not allowing the chief constable to state his case before it exercised its power of dismissal. The House invalidated the dismissal, stating the subsequent hearing to confirm the dismissal did not cure the original defect.
Ridge v Baldwin is an important case because it established that where the decision of a body (whether judicial, quasi-judicial or administrative) directly affects an individual’s rights, property or way of life, it should be made fairly or conform with the rules of natural justice.
Judical, Quasi-Judical and Administrative bodies
We have seen that the rule against bias and the right to be heard applies to bodies exercising judicial, quasi-judicial and the right to be heard extends to those exercising administrative functions. However, the application of the rules of natural justice may be complicated by a number of factors, including:
an Act of Parliament can restrict the operation of the rules of natural justice. For example, in Re HK (an infant) [1967] 2 QB 617, under the immigration laws and regulations, immigration officers were not obliged to hold a hearing before they determined whether the applicant should be allowed to remain in Britain. This was upheld by the court, although they also held that the immigration officer was under an to act fairly.
The distinction between bodies exercising judicial and those exercising administrative functions is not straightforward. There may be some overlap between the respective functions. However, a broad distinction is as follows:
Judicial bodies. These are bodies which have been given legal authority to hear and determine cases affecting the rights and liberty of individuals. The best example of judicial bodies are the courts. The courts generally do not have discretion in how they apply the rules of natural justice.
Administrative bodies.
Consist of bodies or individuals given power to act on behalf of the Government in order to ensure the smooth running of the country. These include government ministers and officials and local authorities to whom the government delegates power to supervise and maintain the operation of local services like, the National Health Service, Education Authorities, boards granting licenses and the police. Depending on the type of body involved, it may have considerable discretion in applying the rules of natural justice, see Section 4. further).
Quasi-judicial bodies.
These could be said to be those bodies or individuals exercising a mixture of judicial and administrative functions. Alternatively, they can hear and determine cases and are also such as tribunals and immigration officers. In Again, depending on the type of body involved, it may have discretion in applying the rules of natural justice, see Section 4. further).
The right to a fair hearing and legitimate expectations
We have seen in Section 2., that the right to be heard arises where a person or body has power to determine questions affecting the rights of individuals. In this situation, the individual can expect to be informed of the hearing, know the case against them, make oral representations and so on. This is known as a legitimate expectation.
A legitimate expectation to be heard may arise when the individual has been led to believe, either by the words or the conduct of decision-maker, that certain procedures will be followed before reaching the decision. In these situations, the legitimate expectations gives rise to a duty to act fairly. Factors giving rise to a legitimate expectation include the following:
Where assurances are given that there will be a hearing. In R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 1 QB 299, taxi drivers were given assurances that their licences would not be revoked without first consulting with them. The Corporation (an administrative body) failed to do this and it was held that they had a legitimate expectation to be consulted.
Similarly, in AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 an order was made to deport an illegal immigrant. At the time, the Director of Immigration (exercising a quasi-judical function) had given an assurance that illegal immigrants would not be deported without first being interviewed. Held, while an illegal immigrant as a non-citizen had no right to have a hearing, the assurance given created a legitimate expectation in the mind of the individual. In accordance with the rules of fairness, the order to deport was invalidated.
Where the body acts in a way which creates a legitimate expectation. In R v Secretary of State for Health ex parte US Tobacco International Inc [1992] QB 353, the government provided a company with a grant to produce snuff, even though it knew snuff could cause cancer.
Subsequently, on the advice of a committee, the Goverment announced its intention to ban the substance. Held, a legitimate expectation did arise, but in the public interest, the ban should remain, so no remedy was available.
Where policies or guidelines exist which give rise to a legitimate expectation. In R v Secretary of State for the Home Department ex parte Ruddock [1987] 1 WLR 1482, a government circular informed that the Home Secretary (a government minister exercising an administrative function) had authorised the interception of certain telephone calls. The circular set out guidelines to be followed before such calls were intercepted.
These were not followed. Held, a legitimate expectation that the guidelines would be followed did arise. However, as the court felt the Home Secretary had discretion in deciding how the guidelines should be applied and had not acted unreasonably, the applicant’s claim failed.
Legitimate expectation to an oral hearing.
This is not an automatic right. Sometimes, when written representations have been made prior to the decision being made, this will satisfy the right to be heard. For instance, in Lloyd v McMahon [1987] 1 All ER 1118, councillors (exercising an administrative function) failed to set local rates. The case was first heard by District Auditors, who felt no oral hearing was necessary. Before the court, held as notice of the case against the councillors was given and written representations considered, lack of a oral hearing did not amount to a breach of natural justice.
Legitimate expectation that rules of law will be followed. In R v Board of Visitors of Hull Prison, ex parte St Germain (No.2) [1979] 1 WLR 1401, prisoners were brought before the Board of Visitors after being involved in a riot. Evidence of officers who could not attend the hearing was put before the Visitors. This was hearsay evidence, that is, the words of someone else not present at the hearing.
Hearsay evidence is generally not admissible in courts of law, alternatively, it cannot be put before a court of law. On being found guilty, the prisoners challenged the Visitors decision. Held, the evidence of the officers should not have been put before the Visitors and in doing so, this deprived the prisoners of a fair hearing. The decision of the board was quashed.
However, this expectation is not an automatic right and may depend on the circumstances of the case. In R v Army Board of the Defence Council ex parte Anderson [1991] 3 WLR 42, an allegation of racial discrimination was made against the army. The Army Board did not grant Anderson an oral hearing, nor was he allowed to see documents relating to his case.
The Board found there was not enough evidence to establish discrimination. Anderson applied to the courts for judicial review (see Section 5. below) of the decision. The Board argued it was not exercising judicial, but adminstrative functions (see Section 3. above), so its decision was not subject to the rules of natural justice. This was rejected by the court. The court held, it was for the Board to decide whether an oral hearing was required or whether witnesses should be present, but they must take this decision fairly, which they did not. Further, they were under a duty to disclosure documents, apart from those covered by public interest immunity . The decision of the Board was therefore quashed.
Disciplinary proceedings.
In R v Board of Visitors of Hull Prison, ex parte St Germain and R v Army Board of the Defence Council ex parte Anderson above, it was stressed that there is no automatic right to an oral hearing or to question witnesses.
Right to legal representation.
This is not an automatic right. It depends on the type of hearing involved. A legal representative may not be necessary in hearings before an administrative body for example. At quasi-judicial hearings (such as those before a tribunal), whether a legal representative is present is at the discretion of the body involved.
Remedies for breach of Natural Justice
In order to challenge the decision of a judicial, quasi-judicial or adminstrative body for breach of the rules of natural justice, the individual may apply to the courts to review the decision of the body, and a remedy. This is known as judicial review. Judicial review applies equally to bodies with legal authority (such as the courts) as well as those exercising governmental powers (such as local authorities). This discretionary remedy allows the court to step in where a body or individual has acted unfairly or beyond powers granted, that is ultra vires.
There is no automatic right to judicial review.
The aggrieved party must obtain the permission of the court (or leave) to apply for judicial review. If, once the court has reviewed the decision, there is a breach of natural justice, the court may order certiorari, a writ to quash, nullify or invalidate the decision of the body. It cannot replace the decision of the body with one of its own, only instruct the body to rehear the case, applying natural justice where appropriate.
