Natural justice

Last updated

A tondo of an allegory of justice (1508) by Raphael in the Stanza della Segnatura (Room of the Apostolic Signatura) of the Apostolic Palace, Vatican City Raffael 053.jpg
A tondo of an allegory of justice (1508) by Raphael in the Stanza della Segnatura (Room of the Apostolic Signatura) of the Apostolic Palace, Vatican City

In English law, natural justice is technical terminology for the rule against bias ( nemo iudex in causa sua ) and the right to a fair hearing ( audi alteram partem ). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".

Contents

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in practice whereas imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.

Background

The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising. ON-CourSupreme 20090606-164356 panoramique.jpg
The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising.

Natural justice is a term of art that denotes specific procedural rights in the English legal system [1] and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice. [2]

Although natural justice has an impressive ancestry [3] and is said to express the close relationship between the common law and moral principles, [4] the use of the term today is not to be confused with the "natural law" of the Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century. [5] Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia, [6] :583 and the United Kingdom, [3] :320 it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing, [3] :322 which are the rule against bias ( nemo iudex in causa sua , or "no man a judge in his own cause"), and the right to a fair hearing ( audi alteram partem , or "hear the other side"). [7]

The requirements of natural justice or a duty to act fairly depend on the context. [6] :584–585 In Baker v Canada (Minister of Citizenship and Immigration) (1999), [8] the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker. [9]

Earlier, in Knight v Indian Head School Division No 19 (1990), [10] the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect. [10] :para 30

Whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. [10] :para 32 Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual. [10] :para 39

Rule against bias

In general

People are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies the basic concept of impartiality, [11] and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. [12] A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions. [13]

The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system and leads to ensuing chaos. [14] The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co (FGC) Ltd v Lannon (1968): [15] "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'" [15] :599

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that "[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done". [16]

Forms of bias

Actual and imputed bias

A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of Cottenham, 1781-1851), by Charles Robert Leslie. In Dimes v Grand Junction Canal (1852), his Lordship was disqualified from hearing a case as he had a pecuniary interest in the outcome. Charles Pepys, 1st Earl of Cottenham by Charles Robert Leslie cropped.jpg
A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of Cottenham, 1781–1851), by Charles Robert Leslie. In Dimes v Grand Junction Canal (1852), his Lordship was disqualified from hearing a case as he had a pecuniary interest in the outcome.

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove. [17]

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic—the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. [18] A classic case is Dimes v Grand Junction Canal (1852), [18] which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds' worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2) (1999). [19] In an appeal to the House of Lords, the Crown Prosecution Service sought to overturn a quashing order made by the Divisional Court regarding extradition warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty International (AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside.

The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (UK) Ltd v Bayfield Properties Ltd (1999), [20] the Court of Appeal warned against any further extension of the automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based". [20] :465

Apparent bias

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. [21] An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias".

The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. [22] In R v Gough (1993), [23] the House of Lords chose to state the test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that "the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man". [23] :670 However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism is that the emphasis on the court's view of the facts gives insufficient emphasis to the perception of the public. [24] These criticisms were addressed by the House of Lords in Porter v Magill (2001). [25] The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". [25] :494 This case therefore established the current test in the UK to be one of a "real possibility of bias".

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. [26] Although not currently adopted in the UK, this test has been endorsed by the Singapore courts. [27]

It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that "[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done". [20] :477

In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), [14] Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the higher standard of proof centring on "probability". Secondly, he suggested that real in real likelihood cannot be taken to mean "actual", as this test relates to apparent and not actual bias. He also observed that both the court's and the public's perspectives are "integral parts of a holistic process" with no need to draw a sharp distinction between them. [14] :617–8

In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006), [28] Judicial Commissioner Sundaresh Menon thought that there was a real difference between the reasonable suspicion and real likelihood tests. [28] :101 In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, likelihood points towards something being likely, and real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible [28] :99 Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure". [28] :103

The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice. [28] :107–8 As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.

Exceptions to the rule against bias

Necessity

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act". [29] In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems. [30]

This issue regarding necessity was raised in Dimes. [18] The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail". [18] :787

Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. [31] If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so. [32]

Effect of a finding of bias

In Dimes, [18] the judges advised the House of Lords that Lord Cottenham's pecuniary interest made his judgment not void, but voidable. This advice is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal. [33]

However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires , [33] :401 hence making the judgment void. Lord Esher said in Allison v General Council of Medical Education and Registration (1894) [34] that the participation of a disqualified person "certainly rendered the decision wholly void". [34] :757

Right to a fair hearing

In general

A hearing of the International Court of Justice in 2006 presided over by its president, Her Excellency Dame Rosalyn Higgins. A fundamental aspect of natural justice is that before a decision is made, all parties should be heard on the matter. ICJ-CJI hearing 1.jpg
A hearing of the International Court of Justice in 2006 presided over by its president, Her Excellency Dame Rosalyn Higgins. A fundamental aspect of natural justice is that before a decision is made, all parties should be heard on the matter.

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. [33] :402 The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases. [35]

Besides promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. [33] :402 It is now well established that it is not the character of the public authority that matters but the character of the power exercised. [33] :405 However, in the United Kingdom prior to Ridge v Baldwin (1963), [36] the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863). [37] In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), [38] Lord Atkin observed that the right only applied where decision-makers had "the duty to act judicially". [38] :205 In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision. [3] :330

In Ridge v Baldwin, Lord Reid reviewed the authorities extensively and attacked the problem at its root by demonstrating how the term judicial had been misinterpreted as requiring some additional characteristic over and above the characteristic that the power affected some person's rights. In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice. [33] :413–5 [39] This removal of the earlier misconception as to the meaning of judicial is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review. [40]

The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated by Ahmed v H.M. Treasury (No. 1) (2010). [41] The Treasury had exercised powers to freeze the appellants' financial assets and economic resources on the ground that it reasonably suspected the appellants were or might be persons who had committed, attempted to commit, participated in or facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 [42] and the Al-Qaida and Taliban (United Nations Measures) Order 2006 [43] made under the United Nations Act 1946. [44] The Supreme Court of the United Kingdom held that since the Al-Qaida Order made no provision for basic procedural fairness, it effectively deprived people designated under the order the fundamental right of access to a judicial remedy and hence was ultra vires the power conferred by the United Nations Act 1946 for the making of the Order. [45]

Article 6 of the European Convention

The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which states: [46]

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with the development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine. [33] :405 Nonetheless, Article 6 supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal. [47]

Aspects of a fair hearing

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. [35] This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v Wandsworth, [37] Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. [48] As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody (1993): "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer." [49] [6] :582

It has been suggested that the requirement of prior notice serves three important purposes: [48] :127

  • The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
  • The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
  • The rule of law – notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case. [48] :127

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own case. [6] :582 Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v Baldwin, a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v Evans (1982), [50] a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v Federation of Malaya (1962), [11] a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council held that the proceedings had failed to provide him a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face—"Natural justice does not generally demand orality". [51] It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. [51] :287 In Lloyd v McMahon (1987), [52] an oral hearing did not make a difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral hearing may not always be the "very pith of the administration of natural justice". [52] :670 It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise. [48] :128

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether the person charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the person is also fully aware of the nature of the allegations against him or her so as to have a proper opportunity to present his or her own case. [53] In Secretary of State for the Home Department v AF (2009), [54] Lord Phillips of Worth Matravers said:

The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. [54] :355

However, when a hearing requires the balancing of multiple polycentric issues such as natural justice and the protection of confidential information for national security reasons, both the concerns of public security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF, [54] applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom (2009), [55] that a person accused of terrorism against whom a control order has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate. If this requirement is satisfied, a fair hearing can be conducted without detailed disclosure of confidential information that might compromise national security. On the facts of the case, a special advocate was not permitted further contact with an applicant or his ordinary legal representatives except with permission of the Special Immigration Appeals Commission (SIAC) after viewing confidential (or "closed") materials.

The House of Lords recognized that although a special advocate's usefulness is stymied somewhat from having no further instructions after viewing such materials, if the SIAC decides to issue a control order predominantly on the basis of non-confidential (or "open") materials, an applicant cannot be regarded as having been denied an opportunity to challenge the reasonableness of the government's beliefs and suspicions about him. If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi, if the open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence. However, if the evidence revealed to the person consists only of general assertions and the case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair hearing rule under natural justice will not be satisfied. [54] :350-2

In such cases, there are strong policy considerations supporting the principle that a trial procedure can never be considered fair if a person is kept in ignorance of the case against him or her. First, since the grounds for a reasonable suspicion that a person is involved in terrorist activity can span from incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the person, in many cases it is impossible for courts to be sure that the disclosure of the evidence will make no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends if sanctions are imposed without any proper explanation of the grounds and when, due to the non-disclosure of information, the person is put in a position where he is unable to properly defend himself. As Lord Phillips put it, "if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust". [54] :355

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). [56] During a disciplinary hearing, council members were either not conscientious about their attendance or did not attend the whole course of proceedings. This meant they did not hear all the oral evidence and submissions. The High Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue prejudice. It was held in Re Teo Choo Hong (1995) [57] that the function of a lay member of a lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had not suffered undue prejudice.

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the other party must also be given the same opportunity. [58] In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties, or decides it without regarding the submissions and arguments made by the parties on the issues, this will amount to a breach of natural justice. [59] However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice. [60] This may occur when the submissions were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state the adjudicator's findings. [60] :758–759

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. [61] When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial. [35] :192

In R v Secretary of State for Home Department, ex parte Tarrant (1983), [62] Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely: [62] :285–6

  • the seriousness of the charge and the potential penalty;
  • whether any points of law are likely to arise.;
  • whether the prisoner is capable of presenting his own case;
  • whether there are any procedural difficulties faced by prisoners in conducting their own defence;
  • whether there is reasonable speed in making the adjudication; and
  • whether there is a need for fairness between prisoners or between prisoners and prison officers.

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality before the law. [63]

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008). [64] Dr. Ho, who had been charged with professional misconduct, chose to appear before the council in person and declined to cross-examine the council's key witness. Subsequently, he argued that he should have been warned of the legal implications of not being legally represented. The High Court rejected this argument and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her case without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998), [65] the accused had appeared in person before a magistrate and had entered a plea of guilt. He later petitioned the High Court for criminal revision, arguing that as the magistrate had not informed him of the defences available to him, his plea had been equivocal. The Court held: [65] :19

The onus [of informing the accused of his defence options or what could be more advantageous to his case] does not shift to the judge (or the Prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be performing two completely incompatible and irreconcilable roles—one as the adjudicator, the other as the de facto defence counsel.

In Singapore, the right to legal representation is contingent on the nature of the inquiry. However, since Article 12 of the Constitution of Singapore guarantees equal protection under the law, it has been suggested that greater weightage should be accorded to this procedural right when balancing it against the competing demand of efficiency. [35] :193–4

The decision and reasons for it

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not include a general rule that reasons should be given for decisions. [49] [66] In R v Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), [67] Denning L.J. stated: "I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision." [67] :352 It has been stated that "no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions". [68]

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-makers. Such decisions also lacked the regularity and transparency that distinguish them from the mere say-so of public authorities. On such grounds, there are obvious benefits for the disclosure of reasons for decisions. First, procedural participation by people affected by a decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily. [48] :110

Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative discretion. [35] :194 Secondly, accountability makes it necessary for the public authority to face up to the people affected by a decision. When a public authority acts on all the relevant considerations, this increases the probability of better decision outcomes and, as such, is beneficial to public interests. Another important benefit is that respect for decision-makers is fostered, which increases their integrity in the public's eyes. [48] :110

See also

Notes

  1. Frederick F. Shauer (1976), "English Natural Justice and American Due Process: An Analytical Comparison", William and Mary Law Review, 18 (1): 47–72 at 47.
  2. See generally Bernard Schwartz (1953), "Administrative Procedure and Natural Law", Notre Dame Lawyer, 28 (2): 169, cited in Shauer, "English Natural Justice and American Due Process", p. 51, n. 24.
  3. 1 2 3 4 Lord Woolf; Jeffrey Jowell; Andrew Le Sueur, eds. (2007), "Procedural Fairness: Introduction, History and Comparative Perspectives", De Smith's Judicial Review (6th ed.), London: Sweet & Maxwell, pp. 317–354 at 321, ISBN   978-0-421-69030-1 .
  4. Arthur L. Goodhart (1953), English Law and the Moral Law (PDF), London: Stevens, p. 65, OCLC   1812603 , cited in De Smith's Judicial Review, p. 321
  5. J.R.S. Forbes (2006), "Natural Justice: General", Justice in Tribunals (2nd ed.), Sydney: The Federation Press, pp. 100–118 at 103, ISBN   978-1-86287-610-1 .
  6. 1 2 3 4 Kioa v West [1985] HCA 81, (1985) 159 CLR 550(18 December 1985), High Court (Australia).
  7. David Phillip Jones; Anne S. de Villars (2009), "Natural Justice and the Duty to be Fair", Principles of Administrative Law (5th ed.), Carswell, pp. 208–223 at 209, ISBN   978-0-7798-2126-6 .
  8. Baker v. Canada (Minister of Citizenship and Immigration) , 1999 CANLII 699 , [1999] 2 S.C.R. 817, Supreme Court (Canada).
  9. Baker, paras. 23–28.
  10. 1 2 3 4 Knight v. Indian Head School Division No. 19 , 1990 CANLII 138 , [1990] 1 S.C.R. 653, S.C.(Canada).
  11. 1 2 Surinder Singh Kanda v Federation of Malaya [1962] UKPC 2 , [1962] AC 322 at 337, Privy Council (on appeal from Malaya).
  12. Lord Mackay of Clashfern, ed. (2010), Halsbury's Laws of England , vol. 61 (5th ed.), London: LexisNexis, para. 629, ISBN   978-1-4057-3424-0 .
  13. See the "Right to a fair hearing" section below.
  14. 1 2 3 Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [2005] SGHC 153 ,[2005] 4 S.L.R.(R.) [Singapore Law Reports (Reissue)] 604 at 610, para. 11, High Court (Singapore).
  15. 1 2 Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5 , [1969] 1 QB 577, Court of Appeal (England and Wales).
  16. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259, High Court (King's Bench) (England & Wales).
  17. Chee Siok Chin v. Attorney-General [2006] SGHC 153 ,[2006] 4 S.L.R.(R.) 541 at 547–548, para. 9, H.C.(Singapore).
  18. 1 2 3 4 5 Dimes v Grand Junction Canal Proprietors (1852)3 H.L. Cas. 759, 10 E.R. 301 , House of Lords (UK).
  19. R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] UKHL 1 , [2000] 1 AC 119 at 133, House of Lords (UK).
  20. 1 2 3 Locabail (UK) Ltd v Bayfield Properties Ltd. [1999] EWCA Civ 3004 , [2000] QB 451, Court of Appeal (England and Wales).
  21. Ex parte Pinochet, pp. 132–133.
  22. R v Rand (1866) LR 1 QB 230 at 233, High Court (Queen's Bench) (England & Wales).
  23. 1 2 R v Gough [1993] UKHL 1 , [1993] AC 646, House of Lords (UK).
  24. Webb v The Queen [1994] HCA 30 , (1994) 181 CLR 41, High Court (Australia).
  25. 1 2 Porter v Magill [2001] UKHL 67 , [2002] 2 AC 357, House of Lords (UK).
  26. R v Liverpool City Justices, ex parte Topping [1983] 1 W.L.R. 119 at 123, High Court (Queen's Bench) (England & Wales).
  27. Jeyaretnam Joshua Benjamin v. Lee Kuan Yew [1992] 1 S.L.R.(R.) 791 at 825–826, paras. 80–83, C.A.; Tang Liang Hong v. Lee Kuan Yew [1997] 3 S.L.R.(R.) 576 at 595–596, para. 46, C.A.
  28. 1 2 3 4 5 Re Shankar Alan s/o Anant Kulkarni [2006] SGHC 194 ,[2007] 1 S.L.R.(R.) 85, H.C.(Singapore).
  29. Geoffrey A. Flick (1979), Natural Justice: Principles and Applications, London: Butterworths, pp. 138–139, ISBN   978-0-409-35260-3 .
  30. Great Charte v Kennington(1795)2 Str. 1173, 93 E.R. 1107.
  31. Wakefield Local Board of Health v West Riding and Grimsby Rly. Co. (1865) L.R. 1 QB 84, High Court (Queen's Bench) (England & Wales).
  32. R v Byles, ex parte Hollidge (1912) 77 J.P. 40.
  33. 1 2 3 4 5 6 7 Wade, H.W.R.; Forsyth, C.F. (2009), Administrative Law (10th ed.), Oxford; New York, N.Y.: Oxford University Press, p. 400, ISBN   978-0-19-921973-5 .
  34. 1 2 Allison v General Council of Medical Education and Registration [1894] 1 QB 750, Court of Appeal (England & Wales).
  35. 1 2 3 4 5 Thio Li-ann (1999), "Law and the Administrative State", in Kevin Y L Tan (ed.), The Singapore Legal System (2nd ed.), Singapore: Singapore University Press, pp. 160–229 at 192–193, ISBN   978-9971-69-213-1 .
  36. Ridge v Baldwin [1963] UKHL 2 , [1964] AC 40, House of Lords (UK).
  37. 1 2 Cooper v Wandsworth Board of Works(1863)14 C.B.N.S. 180, 143 E.R. 414 , Court of Common Pleas (England). This was seen in cases such as Local Government Board v Arlidge [1915] AC 120, House of Lords (UK); and R v Leman Street Police Station Inspector, ex parte Venicoff [1920] 3 KB 72, High Court (Kings Bench) (England & Wales).
  38. 1 2 R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 KB 171, High Court (Kings Bench) (England & Wales).
  39. See also Nicholson v. Haldimand-Norfolk Regional Police Commissioners , 1978 CANLII 24 , [1979] 1 S.C.R. 311, S.C.(Canada).
  40. M. Sornarajah. "Natural Justice, Fairness and Administrative Functions" (PDF). (1977) 5(3) University of Tasmania Law Review 268 at 269.
  41. Ahmed v Her Majesty's Treasury [2010] UKSC 2 , [2010] 2 AC 534, Supreme Court (UK).
  42. Terrorism (United Nations Measures) Order 2006 (S.I. 2006 No. 2657).
  43. Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006 No. 2952).
  44. United Nations Act 1946 (1946 c. 45), s. 12.
  45. See, for instance, Ahmed, p. 685, para 246, per Lord Mance J.S.C.
  46. Art. 6(3) sets out some of the requirements of the right to a fair hearing, but only in the context of criminal proceedings.
  47. Hadjianastassiou v Greece [1992] ECHR 78 , (1992) 16 E.H.R.R. 219, European Court of Human Rights.
  48. 1 2 3 4 5 6 Timothy Endicott (2009), Administrative Law, New York, N.Y.: Oxford University Press, p. 110, ISBN   978-0-19-927728-5 .
  49. 1 2 R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8 , [1994] 1 AC 531 at 560, House of Lords (UK).
  50. Chief Constable of the North Wales Police v Evans [1982] UKHL 10 , [1982] 1 W.L.R. 1155, House of Lords (UK).
  51. 1 2 R. (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2001] EWCA Civ 329 , [2002] 2 W.L.R. 255 at 286, para. 47, Court of Appeal (England and Wales).
  52. 1 2 Lloyd v McMahon [1987] 1 AC 625, House of Lords (UK).
  53. Kay Swee Pin v. Singapore Island Country Club [2008] 2 S.L.R.(R.) 802 at 806, para. 7.
  54. 1 2 3 4 5 Secretary of State for the Home Department v AF [2009] UKHL 28 , [2010] 2 AC 269, House of Lords (UK).
  55. A v United Kingdom [2009] ECHR 301 , (2009) 49 E.H.R.R. 625, E.C.H.R.
  56. Tan Boon Chee David v. Medical Council of Singapore [1979–1980] S.L.R.(R.) 523, H.C. (Singapore).
  57. Re Teo Choo Hong [1995] 2 S.L.R.(R.) 441, H.C. (Singapore).
  58. Howe Yoon Chong v Chief Assessor [1977–1978] S.L.R.(R.) 386, H.C. (Singapore).
  59. Front Row Investment Holdings (Singapore) Pte. Ltd. v. Daimler South East Asia Pte. Ltd. [2010] SGHC 80 at para. 31, H.C. (Singapore); see also R v Industrial Injuries Commissioner, ex parte Howarth (1968) 4 K.I.R. 621; Kay Swee Pin, p. 806, para. 7: "[I]f a tribunal, after the close of the hearing, comes into possession of further evidence, the party affected should be invited to comment upon it".
  60. 1 2 SEF Construction Pte. Ltd. v. Skoy Connected Pte. Ltd. [2010] 1 S.L.R. 733 at 757, para. 58.
  61. Kok Seng Chong v. Bukit Turf Club [1992] 3 S.L.R.(R.) 772, H.C. (Singapore).
  62. 1 2 R v Secretary of State for Home Department, ex parte Tarrant [1985] 1 QB 251, Divisional Court (England & Wales).
  63. Doresamy v. Public Services Commission [1971] 2 Malayan Law Journal 127, High Court (Malaysia).
  64. Ho Paul v. Singapore Medical Council [2008] 2 S.L.R.(R.) 780, H.C. (Singapore).
  65. 1 2 Rajeevan Edakalavan v. Public Prosecutor [1998] 1 S.L.R.(R.) 10, H.C. (Singapore).
  66. Re Siah Mooi Guat [1988] 2. S.L.R.(R.) 165 at 178–179, para. 34, H.C. (Singapore).
  67. 1 2 R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, Court of Appeal (England & Wales).
  68. Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE , London: Stevens, p. 23, ISBN   978-0-420-43710-5 .

Related Research Articles

<span class="mw-page-title-main">Legitimate expectation</span> Legal doctrine regarding provided rights and services

The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.

<span class="mw-page-title-main">Canadian administrative law</span> Law governing the government agencies of Canada

Canadian administrative law is the body of law "that applies to all administrative decisions, whether issued by front-line officials, ministers, economic regulatory agencies, or administrative tribunals, with interpretations of law and exercises of discretion subject to the same. .. rules." Administrative law is concerned primarily with ensuring that administrative decision-makers remain within the boundaries of their authority and observe procedural fairness.

Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the Administrative Court for a decision. If the court finds the decision unlawful it may have it set aside (quashed) and possibly award damages. A court may impose an injunction upon the public body.

<span class="mw-page-title-main">United Kingdom administrative law</span>

United Kingdom administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest", within three months of the grounds of the cause of action becoming known. By contrast, claims against public bodies in tort or contract are usually limited by the Limitation Act 1980 to a period of 6 years.

Wednesbury unreasonableness is a ground of judicial review in Singapore administrative law. A governmental decision that is Wednesbury-unreasonable may be quashed by the High Court. This type of unreasonableness of public body decisions was laid down in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947), where it was said that a public authority acts unreasonably when a decision it makes is "so absurd that no sensible person could ever dream that it lay within the powers of the authority".

<span class="mw-page-title-main">Doctrine of bias in Singapore law</span> Principle of appellate law in Singapore

Bias is one of the grounds of judicial review in Singapore administrative law which a person can rely upon to challenge the judgment of a court or tribunal, or a public authority's action or decision. There are three forms of bias, namely, actual, imputed and apparent bias.

<span class="mw-page-title-main">Legitimate expectation in Singapore law</span> Singapore legal doctrine allowing judicial review

The doctrine of legitimate expectation in Singapore protects both procedural and substantive rights. In administrative law, a legitimate expectation generally arises when there has been a representation of a certain outcome by the public authorities to an individual. To derogate from the representation may amount to an abuse of power or unfairness. The doctrine of legitimate expectation as a ground to quash decisions of public authorities has been firmly established by the English courts. Thus, where a public authority has made a representation to an individual who would be affected by a decision by the authority, the individual has a legitimate expectation to have his or her views heard before the decision is taken. Alternatively, an individual may also have a legitimate expectation to a substantive right. The recognition of substantive legitimate expectations is somewhat controversial as it requires a balancing of the requirements of fairness against the reasons for any change in the authority's policy. This suggests the adoption of a free-standing proportionality approach, which has been said not to apply in administrative law.

<span class="mw-page-title-main">Judicial independence in Singapore</span> Judicial independence in the nation

Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.

<span class="mw-page-title-main">Rule of law doctrine in Singapore</span> Law doctrine in Singapore

In Singapore, the rule of law doctrine has been the topic of considerable disagreement and debate, largely through differing conceptions of the doctrine. These conceptions can generally be divided into two categories developed by legal academics, the "thin", or formal, conception and the "thick", or substantive, conception of the rule of law. The thin conception, often associated with the legal scholars Albert Venn Dicey and Joseph Raz, advocates the view that the rule of law is fulfilled by adhering to formal procedures and requirements, such as the stipulations that all laws be prospective, clear, stable, constitutionally enacted, and that the parties to legal disputes are treated equally and without bias on the part of judges. While people subscribing to the thin conception do not dismiss the importance of the content of the law, they take the view that this is a matter of substantive justice and should not be regarded as part of the concept of the rule of law. On the other hand, the thick conception of the rule of law entails the notion that in addition to the requirements of the thin rule, it is necessary for the law to conform to certain substantive standards of justice and human rights.

<span class="mw-page-title-main">Precedent fact errors in Singapore law</span> Singaporean legal doctrine

Errors as to precedent facts, sometimes called jurisdictional facts, in Singapore administrative law are errors committed by public authorities concerning facts that must objectively exist or not exist before the authorities have the power to take actions or make decisions under legislation. If an error concerning a precedent fact is made, the statutory power has not been exercised lawfully and may be quashed by the High Court if judicial review is applied for by an aggrieved person. The willingness of the Court to review such errors of fact is an exception to the general rule that the Court only reviews errors of law.

<span class="mw-page-title-main">Remedies in Singapore administrative law</span> Types of legal orders applicable on Singapore Governments executive branch

The remedies available in Singapore administrative law are the prerogative orders – the mandatory order, prohibiting order (prohibition), quashing order (certiorari), and order for review of detention – and the declaration, a form of equitable remedy. In Singapore, administrative law is the branch of law that enables a person to challenge an exercise of power by the executive branch of the Government. The challenge is carried out by applying to the High Court for judicial review. The Court's power to review a law or an official act of a government official is part of its supervisory jurisdiction, and at its fullest may involve quashing an action or decision and ordering that it be redone or remade.

<span class="mw-page-title-main">Administrative law in Singapore</span> Law of Singapores government agencies

Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised through its various administrative agencies. Administrative law requires administrators – ministers, civil servants and public authorities – to act fairly, reasonably and in accordance with the law. Singapore administrative law is largely based on English administrative law, which the nation inherited at independence in 1965.

<span class="mw-page-title-main">Illegality in Singapore administrative law</span> Singaporean judicial review doctrine

Illegality is one of the three broad headings of judicial review of administrative action in Singapore, the others being irrationality and procedural impropriety. To avoid acting illegally, an administrative body or public authority must correctly understand the law regulating its power to act and to make decisions, and give effect to it.

<span class="mw-page-title-main">Threshold issues in Singapore administrative law</span> Legal requirements to be satisfied to bring cases to the High Court

Threshold issues are legal requirements in Singapore administrative law that must be satisfied by applicants before their claims for judicial review of acts or decisions of public authorities can be dealt with by the High Court. These include showing that they have standing to bring cases, and that the matters are amenable to judicial review and justiciable by the Court.

<span class="mw-page-title-main">Exclusion of judicial review in Singapore law</span> Singapores application of legal concept to protect the exercise of executive power

Exclusion of judicial review has been attempted by the Parliament of Singapore to protect the exercise of executive power. Typically, this has been done though the insertion of finality or total ouster clauses into Acts of Parliament, or by wording powers conferred by Acts on decision-makers subjectively. Finality clauses are generally viewed restrictively by courts in the United Kingdom. The courts there have taken the view that such clauses are, subject to some exceptions, not effective in denying or restricting the extent to which the courts are able to exercise judicial review. In contrast, Singapore cases suggest that ouster clauses cannot prevent the High Court from exercising supervisory jurisdiction over the exercise of executive power where authorities have committed jurisdictional errors of law, but are effective against non-jurisdictional errors of law.

Fettering of discretion by a public authority is one of the grounds of judicial review in Singapore administrative law. It is regarded as a form of illegality. An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body. If the High Court finds that a decision-maker has fettered its discretion, it may hold the decision to be ultra vires – beyond the decision-maker's powers – and grant the applicant a suitable remedy such as a quashing order to invalidate the decision.

The failure of a public authority to take into account relevant considerations and the taking of irrelevant ones into account are grounds of judicial review in Singapore administrative law. They are regarded as forms of illegality.

<span class="mw-page-title-main">Procedural impropriety in Singapore administrative law</span>

Procedural impropriety in Singapore administrative law is one of the three broad categories of judicial review, the other two being illegality and irrationality. A public authority commits procedural impropriety if it fails to properly observe either statutory procedural requirements, or common law rules of natural justice and fairness.

<i>Re Shankar Alan s/o Anant Kulkarni</i> Administrative law judgment in Singapore

Re Shankar Alan s/o Anant Kulkarni was a 2006 administrative law judgment in which the High Court of Singapore quashed a decision made by the Disciplinary Committee of the Law Society of Singapore against a lawyer, Alan Shankar s/o Anant Kulkarni. The Disciplinary Committee had found Shankar, who was a solicitor, guilty of grossly improper misconduct under the Legal Profession Act. Shankar applied to the High Court for judicial review on the ground that the Committee's ruling was affected by apparent bias.

<span class="mw-page-title-main">Ouster clause</span> Type of clause in legislation

An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.

References

Cases

Other works

Further reading

Articles, websites and videos

Books