Natural Justice and Tribunals

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Natural Justice and Tribunals

• Penny Letts

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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

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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

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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

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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)

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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

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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

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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)

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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

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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

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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

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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)

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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))

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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)

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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

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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

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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

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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