<<

. 127
( 155 .)



>>

a planning authority, composed of democratically elected councillors who have
been elected on a manifesto commitment to support “ or to block “ certain sorts
of development. To what extent may such electoral commitments constitute
bias? This problem was addressed in R v Secretary of State for the Environment,
ex p Kirkstall Valley Campaign [1996] 3 All ER 304. The judgment makes clear
that the normal test for bias (as now articulated by Lord Hope in Porter v Magill,
although at the time the Kirkstall Valley case was decided the test was slightly
di¬erent) should be applied in the normal way in such a context: ˜In the case of
an elected body the law recognises that members will take up o¬ce with
publicly stated views on a variety of policy issues™, said Sedley J. In such cases,
he continued, ˜the court will be concerned to distinguish . . . legitimate prior
stances or experience from illegitimate ones™. The judge ruled that, on the facts,
the claimants had failed to demonstrate bias.
These matters have been a¬ected by the regime of Convention rights intro-
duced into our law by the Human Rights Act 1998. Article 6(1) of the European
Convention on Human Rights, which is domestically incorporated under the Act,
provides that ˜In the determination of his civil rights and obligations . . . every-
one is entitled to a fair and public hearing . . . by an independent and impartial
tribunal™. There are many circumstances in which our governmental system pro-
vides for decisions to be made by ministers or administrators rather than by an
˜independent and impartial tribunal™. Under the planning system, for example,
the ¬nal decision on the most complex and controversial planning applications “
on matters such as whether Heathrow airport should have a new terminal, or
whether there should be a new high-speed rail link between London and the
Channel Tunnel, and so forth “ will be made by the Secretary of State. The one
thing that the Secretary of State clearly is not is an independent and impartial tri-
bunal. In R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23,
[2003] 2 AC 295, the House of Lords held that this aspect of Britain™s planning
system did not violate Article 6. The simplest solution would have been for their
684 British Government and the Constitution


Lordships to rule that Article 6 is not engaged in these circumstances: that a deci-
sion on a planning application is not the determination of a ˜civil right™ for the
purposes of Article 6 (after all, developers submitting planning applications can
hardly be said to be ˜on trial™, and the right contained in Article 6 is described
in the Convention as the right to a fair trial). This elegant solution was e¬ectively
unavailable to the House of Lords, however, because of the case law of the
European Court of Human Rights, which has vastly expanded the scope of
Article 6 so as to include within it decisions such as those at stake in the planning
process (for critical analysis, see Gearty (2001) 64 MLR 129). While the House of
Lords is not technically bound by this case law, their Lordships knew that had the
claimants lost in the House of Lords on this ground they would surely have
mounted a successful appeal to the European Court in Strasbourg. Accordingly,
the House of Lords ruled that Article 6 was not violated because, ¬rst, the
decision-making of the Secretary of State was subject to judicial review and, sec-
ondly, the Secretary of State™s decision-making in this context was closely related
to sensitive questions of national environmental and social policy, in respect of
which the Secretary of State should be accountable primarily to Parliament rather
than to the courts (see eg, Lord Slynn at [48], Lord Nolan at [60], Lord Ho¬mann
at [68] and Lord Clyde at [139]“[144]).
What, however, if the decision-maker is making a straightforwardly admin-
istrative decision, rather than one that impacts upon sensitive policy concerns?
Does the decision-maker then need to be ˜independent and impartial™? This
issue arose in Runa Begum v Tower Hamlets London Borough Council [2003]
UKHL 5, [2003] 2 AC 430, in which the House of Lords chose not to distinguish
Alconbury but to follow it. Mrs Begum was homeless. The local authority
o¬ered her a secure tenancy of a two-bedroom ¬‚at. Mrs Begum did not want to
live in the area in which the ¬‚at was located. She requested a review, as she was
legally entitled to do. As provided in the relevant statutory regulations, the
reviewing o¬cer was someone who was not involved in the original decision to
allocate the ¬‚at and was senior to the o¬cers who had been so involved. The
reviewing o¬cer rejected Mrs Begum™s reasons for refusing the ¬‚at as unrea-
sonable. Mrs Begum argued that the review violated her rights under Article 6,
in that the reviewing o¬cer was not ˜independent and impartial™. The House of
Lords unanimously held that Article 6 was not violated. Two reasons were
furnished in the opinions of the Law Lords: ¬rst, that the reviewing o¬cer was
subject to judicial supervision (via a statutory appeal on a point of law “ the
equivalent for present purposes of judicial review) and secondly, that, as Lord
Ho¬mann expressed it (at [43]), ˜regard must be had to democratic account-
ability, e¬cient administration and the sovereignty of Parliament™. The courts,
he said (at [59]), should be ˜slow to conclude that Parliament has produced an
administrative scheme which does not comply with Convention rights™.
What their Lordships were seeking to avoid in this case was the prospect
of Convention rights being used to undermine the United Kingdom™s well
685 The courts: judicial review and liability


established system of administrative justice in the welfare state. Bene¬ts
such as housing are administered under complex statutory schemes by local
authorities. While the administration of such schemes is, of course, subject to
statutory appeals and to judicial review, it has always been Parliament™s inten-
tion and it has always been deemed to be in the interests of good administra-
tion for these schemes to be administered by professionals employed by local
authorities (or, in the case of other aspects of social security, by government
departments) and not by independent and impartial ¬gures. As in Alconbury,
the most elegant way of ruling that these schemes do not violate Article 6 would
have been for their Lordships to rule that Article 6 is simply not engaged but,
as we have seen, that would be to run counter to the (deeply controversial) case
law of the Court of Human Rights on this issue. The result is that their
Lordships felt that they had no option but to accept that Article 6 is engaged,
albeit that they then had to ¬nd a way of holding that it was not violated. The
solution in Alconbury relied on notions of democratic accountability for con-
tested policy questions (hence Lord Ho¬mann™s reference to ˜democratic
accountability™ above). From a constitutional point of view, that seems fair
enough. But in Begum a di¬erent solution was required “ the reviewing o¬cer
can hardly be said to have been engaged in decision-making on delicate matters
of policy and, in any event, she was not democratically accountable: she was an
o¬cer of the local authority, not a minister or a councillor. Hence Lord
Ho¬mann™s additional references (above) to ˜e¬cient administration and the
sovereignty of Parliament™. Now, it is hardly the scheme of the Human Rights
Act that fundamental constitutional rights should be enjoyed only if and
insofar as they do not impede e¬cient administration or the sovereignty of
Parliament, but Lord Ho¬mann was backed into a corner in ruling in these
terms because any alternative result would either (as Lord Bingham expressed
it at [5]) bring about ˜the emasculation (by over-judicialisation) of adminis-
trative welfare schemes™ or would be destined to be overturned by the European
Court of Human Rights.

(ii) Duty to act fairly
A public authority is manifestly guilty of procedural impropriety if, in exercis-
ing a statutory power, it fails to comply with procedural safeguards “ for
instance, a duty to consult those a¬ected “ incorporated in the Act. Power-
conferring statutes do not, however, always expressly provide safeguards against
unfair treatment of the individual, and the common law may then ˜supply the
omission of the legislature™ (Byles J in Cooper v Wandsworth Board of Works
(1863) 14 CBNS 180, 194) and impose standards of procedural fairness on the
decision-maker. ˜However widely the power is expressed in the statute, it does
not authorise that power to be exercised otherwise than in accordance with fair
procedures™: Lord Browne-Wilkinson in R v Secretary of State for the Home
Department, ex p Pierson [1998] AC 539, 574.
686 British Government and the Constitution


The duty to act fairly requires decision-makers to give to persons a¬ected
a fair opportunity to make representations, and to take those representations
into account, before reaching a decision. The duty was for a time considered to
arise only if the decision to be taken was of a judicial or ˜quasi-judicial™ charac-
ter and to have no application to purely executive action not involving a ˜duty
to act judicially™, but this limitation was eradicated by the House of Lords in
Ridge v Baldwin [1964] AC 40. Liberated by this decision, the courts have
extended the requirements of the duty to act fairly to a wide range of adminis-
trative decision-making.


R v Norfolk County Council Social Services Department, ex p M [1989]
QB 619 (Waite J)
K, a thirteen-year-old girl, complained that M had committed indecent
acts against her. M was arrested but denied the truth of K™s allegations and
the police decided to take no further action for lack of evidence. At a case
conference convened by the social services department of the local authority,
after a brief and one-sided investigation which took no account of K™s disturbed
history and emotional problems and the possibility that her accusations
might be a fantasy or fabrication, the conference recorded a ¬nding of guilt
against M and decided that his name should be entered on the authority™s
child abuse register as an abuser. Although access to the register was restricted,
it was open to certain employees of the authority and members of the public,
including prospective employers and other persons with powers of choice or
decision capable of working to M™s disadvantage. Indeed the council took
the further step of informing M™s employers, who suspended him pending an
internal inquiry. M sought judicial review of the decision to place his name
on the register:

Waite J: . . . I accept that a case conference deliberating whether or not to place a name on
the register as an abuser is not acting judicially so as to make the rules of natural justice
automatically applicable to its procedures as though it had been functioning as a tribunal.
Nevertheless the consequences of registration for M were in my judgement sufficiently
serious . . . to impose on the council a legal duty to act fairly towards him. The council™s
case conference acted unfairly and in manifest breach of that duty when it operated a pro-
cedure which denied him all opportunity of advance warning of their intention, or of prior
consultation, or of being heard to object, or of knowing the full circumstances surrounding
their decision.

This was not a case in which any legal right of M was infringed by his name
being put on the register, but the decision was injurious to his interests in his
good name, peace of mind and employment prospects.
The requirements of natural justice vary according to the subject matter.
In R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC
687 The courts: judicial review and liability


531, 560, Lord Mustill addressed the question of what fairness required of a
decision-maker:

My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited
authorities in which the courts have explained what is essentially an intuitive judgement.
They are far too well known. From them, I derive that (1) where an Act of Parliament
confers an administrative power there is a presumption that it will be exercised in a manner
which is fair in all the circumstances. (2) The standards of fairness are not immutable. They
may change with the passage of time, both in the general and in their application to deci-
sions of a particular type. (3) The principles of fairness are not to be applied by rote identi-
cally in every situation. What fairness demands is dependent on the context of the decision,
and this is to be taken into account in all its aspects. (4) An essential feature of the context
is the statute which creates the discretion, as regards both its language and the shape of
the legal and administrative system within which the decision is taken. (5) Fairness will
very often require that a person who may be adversely affected by the decision will have an
opportunity to make representations on his own behalf either before the decision is
taken with a view to producing a favourable result; or after it is taken, with a view to
procuring its modification; or both. (6) 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.

Fairness is not to be ossi¬ed as a set of rigid rules which must be followed as
a matter of course. It may or may not, for example, require an oral hearing, or
a right to be legally represented, or a right to cross-examine witnesses, or the
giving of reasons for a decision. On these variables see, respectively, Lloyd
v McMahon [1987] 1 AC 625, R v Board of Visitors of HM Prison the Maze, ex p
Hone [1988] 1 AC 379, Bushell v Secretary of State for the Environment [1981]
AC 75 and R v Secretary of State for the Home Department, ex p Doody [1994]
1 AC 531. A court will consider the whole process by which a decision is reached
and, rather than focusing on particular details, decide whether the individual
concerned has, in the end, been fairly treated.
There are some classes of case in which the duty to act fairly is given a
particularly narrow construction by the courts, so as to impose only a minimal
restraint on the public authority. For example, in a number of cases the courts
have taken the view that the ordinary standards of fairness must give way
to the judgement of a minister in matters of national security, for instance
when a person is deported from the United Kingdom on this ground. See eg,
R v Secretary of State for the Home Department, ex p Hosenball [1977] 1 WLR
766 and R v Secretary of State for the Home Department, ex p Cheblak [1991]
1 WLR 890 (both cases are considered in detail in chapter 11). Protecting
con¬dentiality may, likewise, reduce the extent of the law™s safeguarding of
procedural fairness: see R v Gaming Board, ex p Benaim and Khaida [1970]
2 QB 417.
688 British Government and the Constitution


Legitimate expectations
When do the rules of natural justice apply? When will the courts impose a duty
to act fairly on a decision-maker? It is clear that if a decision a¬ects the legal rights
or interests of a party then the duty to act fairly will apply. In addition, since
Schmidt v Secretary of State for Home A¬airs [1969] 2 Ch 149, it has also been the
case that the duty to act fairly will apply when a party has a ˜legitimate expecta-
tion™ that this will be so. In Schmidt Lord Denning MR ruled (at 170), that:

an administrative body may, in a proper case, be bound to give a person who is affected by
their decision an opportunity of making representations. It all depends on whether he has
some right or interest, or, I would add, some legitimate expectation, of which it would not
be fair to deprive him without hearing what he has to say.


Even if a decision will a¬ect no existing right or legally recognised interest, the
decision-maker may be bound to consult or allow a hearing to a party who has
a ˜legitimate expectation™ that that will be done. In R v Board of Inland Revenue,
ex p MFK Underwriting Agents [1990] 1 WLR 1545, 1569“70, Bingham LJ ruled
as follows:

If a public authority so conducts itself as to create a legitimate expectation that a certain
course will be followed it would often be unfair if the authority were permitted to follow
a different course to the detriment of one who entertained the expectation, particularly if
he acted on it.


Conduct giving rise to a legitimate expectation may be an agreement or under-
taking, a regular practice (such as one of regular consultation of a¬ected
parties), or an announcement of procedures to be followed.


R v British Coal Corporation, ex p Vardy [1993] ICR 720 (DC)
British Coal, a nationalised industry, proposed to close down ten collieries on
the grounds that they were operating at a loss and that there was no realistic
prospect that they would operate at a pro¬t in the foreseeable future. The
coalminers™ unions did not accept that all ten pits met these criteria for closure.
The President of the Board of Trade exercised control over pit closures by British
Coal by means of his power to provide or withhold the funds needed for redun-
dancy payments and other expenses resulting from closure. In this instance he
decided to make funds available to enable British Coal to close the ten pits.
Under section 46(1) of the Coal Industry Nationalisation Act 1946 British
Coal was required to establish, in agreement with coalminers™ unions, machin-
ery for consultation on pit closures. In 1985 a new agreement on procedure
for closures, known as the ˜modi¬ed colliery review procedure™, had been
reached in accordance with this section. It included provision for reference to
689 The courts: judicial review and liability


an independent review body, which would report on proposals for closure after
hearing arguments on both sides. The decisions of the Coal Board and of the
minister to proceed with the closures of the ten pits were taken without regard
to the review procedure. Mineworkers at the ten pits and their unions applied

<<

. 127
( 155 .)



>>