Title: Natural Justice and Tribunals
1Natural Justice and Tribunals
2Natural justice
- Two requirements
- Prior notice and an adequate hearing - procedural
fairness - A decision by an impartial tribunal - free from
conflict of interest or bias
3Summary of presentation
- Importance of independence for UK tribunals
- Impact of ECHR
- Impartiality, bias and conflict of interest
- Tribunals and bias recent UK court decisions
- Procedural fairness - users perceptions
- The need for oral hearings
4The work of the Council on Tribunals
- To keep under review the constitution and working
of tribunals - Guide to Drafting Tribunal Rules (1991, revised
2003) - Tribunals, their Organisation and Independence
(1997) - Framework of Standards for Tribunals (2002)
- Work with the Judicial Studies Board
5Independence
- tribunals should properly be regarded as
machinery provided by Parliament for adjudication
rather than as part of the machinery of
administration. Franks (1959) - Tribunals will keep the confidence of users
only in so far as they are seen to demonstrate
similar qualities of independence and
impartiality to the courts Leggatt (2001)
6Institutional independence
- Tribunals should be free to reach decisions
according to law without influence (actual or
perceived) from the body or person whose decision
is being challenged or appealed, or from anyone
else CoT Framework of Standards - Lack of institutional independence criticised
by Leggatt
7European Convention on Human Rights
- Article 6(1)
- 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 - Not all UK tribunals engage Article 6
8Civil rights and obligations
- Include disputes of a genuine and serious
nature, both the actual existence of the right
and the way in which it is exercised - Exclude rights which involve any large measure
of official discretion (e.g. tax, immigration
and asylum,education)
9Article 6 and independence
- Requirements of Article 6 may be met by the
decision-making procedure as a whole with
appeal rights to a judicial body which has full
jurisdiction - Leggatt principle of independence should be
applied irrespective of the reach of Article 6
10Judicial independence
- Appointment of tribunal members
- Term of office and security of tenure
- Existence of guarantees against outside pressures
- Whether the tribunal presents an appearance of
independence - Findlay v UK (1997) EHRR 221
11Judicial impartiality
- The tribunal must be
- Subjectively free of personal prejudice or bias
(no pre-disposition to one outcome or to favour
either party) - Impartial from an objective viewpoint, offering
sufficient guarantees to exclude any legitimate
doubts - Findlay v UK (1997) EHRR 221
12Safeguards against bias
- UK Cabinet Office guidance on openness and
accountability declarations of conflicts of
interest - Distinction between actual bias and appearance of
bias - Automatic disqualification in cases of actual
bias or where the judge may appear to have an
interest in the outcome (Pinochet 2000) - Any doubt should be resolved in favour of recusal
(Locabail 2000)
13The test for apparent bias
- The court must first ascertain all the
circumstances which have a bearing on the
suggestion that the judge was biased. It must
then ask whether those circumstances would lead a
fair-minded and informed observer to conclude
that there was a real possibility that the
tribunal was biased. - (Porter v Magill (2002))
14The fair-minded and informed observer
- Adopts a balanced approach
- Acts reasonably
- A reasonable member of the public is neither
complacent nor unduly sensitive or suspicious - (Johnson v Johnson, 2000 HCA 48)
15Tribunals and bias
- Jiminez 2003 Provisional views must not
indicate a closed mind - Lawal 2003 Part-time judges should not appear
as counsel before a panel consisting of lay
members with whom they had previously sat - R(PD) 2004 allegations of apparent bias based
on analysis of case precedent rather than
apprehension of a fair-minded and informed
observer
16House of Lords judgment in Gillies 2006
- Experience and expertise has nothing to do with
bias - Having expertise on the tribunal can only be an
advantage - A fair-minded and informed observer would
understand the difference between a
pre-disposition towards the views of colleagues
and drawing on knowledge and experience when
testing those views against other evidence
17Procedural rights and protections
- Common law principles
- prior notice of what is proposed
- the opportunity to express views or make
representations before the decision is made or
implemented
18ECHR Article 6
- A fair and public hearing requires
- access to information necessary to bring the case
- access to a court (or tribunal)
- right to some proper form of judicial process
- right to have a hearing within a reasonable time
- right of equality of arms
- right to know the grounds on which a decision is
based
19ECHR Article 5
- Right to liberty and security
- Anyone deprived of liberty shall be entitled to
take proceedings by which the lawfulness of his
detention shall be decided speedily by a court
and his release ordered if the detention is not
lawful (Art 5(4)) - Special procedural safeguards may be required for
persons of unsound mind who are not fully
capable of acting for themselves
20Examples in mental health law
- Location of burden of proof (R(H) 2001)
- Lack of procedural safeguards to protect against
arbitrary deprivation of liberty for people
lacking capacity - Available appeal rights (judicial review and
habeas corpus) insufficient to challenge the
lawfulness of detention - (HL v UK (2005) 40 EHRR 32)
21Procedural rules
- Generally set out in statutory instrument
- Vary widely in complexity and detail
- Generally less formal than courts
- Aiming to achieve appropriate balance between
informality and rigorous decision-making
enabling approach
22Users perceptions of fairness
- Opportunity to participate in the proceedings
- Evidence of being listened to and heard by the
tribunal - Evidence of arguments being genuinely considered,
even if ultimately rejected - Opportunity to influence the decision (i.e. the
tribunal is genuinely open-minded) - Reasons or justification for the decision are
given - Tribunal is neutral or even-handed
- Being treated with courtesy and respect
23Tribunals for Diverse Users Prof Hazel Genn
- Relationship between preparedness / expectations
and perceptions of fairness - Tribunal must communicate that it has considered
the arguments seriously - Limits to tribunals enabling capacity
representation is sometimes essential for
procedural fairness - Users need to understand justification for the
decision
24Need for an oral hearing
- More user friendly?
- Necessary for complex or disputed cases
- Opportunity to uncover information not in written
evidence - Gives parties their day in court
- Allows justice to be seen to be done
- But prevalence of oral hearings now being
challenged in favour of proportionate methods
of dispute resolution
25Consultation Use and value of oral hearings (1)
- Oral hearings can play a valuable role in the
dispute resolution process within administrative
justice in terms of both effectiveness and
perceptions of fairness - There is a range of steps available to assist in
the resolution of disputes without resort to an
oral hearing, but in some situations ultimate
access to an oral hearing is essential to the
pursuit of justice
26Consultation Use and value of oral hearings (2)
- The form and style adopted by an oral hearing can
significantly affect the users experience - There was relatively little knowledge and
experience of other forms of ADR, beyond
adjudication, which might be available within
administrative justice - The need for advice and assistance remains
significant whichever form of dispute resolution
is adopted
27Looking ahead
- The form and style adopted in oral hearings
whether moves towards a more enabling approach
has implications for the application of natural
justice - Mechanisms for the sorting and distribution of
cases (triage) to the most appropriate and
proportionate form of dispute resolution - Future role of the new Administrative Justice and
Tribunals Council in the UK