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Natural Justice and Tribunals

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Title: Natural Justice and Tribunals


1
Natural Justice and Tribunals
  • Penny Letts

2
Natural justice
  • Two requirements
  • Prior notice and an adequate hearing - procedural
    fairness
  • A decision by an impartial tribunal - free from
    conflict of interest or bias

3
Summary 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

4
The 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

5
Independence
  • 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)

6
Institutional 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

7
European 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

8
Civil 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)

9
Article 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

10
Judicial 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

11
Judicial 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

12
Safeguards 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)

13
The 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))

14
The 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)

15
Tribunals 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

16
House 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

17
Procedural 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

18
ECHR 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

19
ECHR 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

20
Examples 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)

21
Procedural 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

22
Users 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

23
Tribunals 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

24
Need 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

25
Consultation 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

26
Consultation 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

27
Looking 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
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