Into most areas of government, including for example prison manage-

ment (R. v. Hull Prison Visitors ex parte St Germain (1979); Leech v.

Parkhurst Prison Deputy Governor (1988)). Although the expression

natural justice is still sometimes used it has become interchangeable

with ‘fairness’ (see Re HK (1967)). However, fairness means what-

ever the court thinks fair in the circumstances of the particular case so

that general principles are difficult to establish (see Lloyd v. McMahon

[1987] 1 All ER 1118 at 1161). Perhaps the law has become too flexible,

with the disadvantage that ‘fairness’ does not necessarily imply a

definite right to a hearing.

For example in Calvin v. Carr (1980), the plaintiff, a racehorse

trainer, was suspended from the course because of accusations of

tampering. The Privy Council held that a combination of factors

meant that he was not entitled to be heard. These included the need to

act quickly to preserve the integrity of the sport, the fact that he could

appeal when he would be given a full hearing, and the fact that he had

agreed to the regulations under which the decision was made. It is

noteworthy that their Lordships rejected the strict rule-of-law argu-

ment that failure to give a hearing at first instance makes a decision

void so that any appeal is also void. This argument had been accepted

in Ridge v. Baldwin (above).

However, the courts have also introduced limits to the right be

heard. These are based on pragmatic factors and include the following:

. ‘Fairness’ concerns the protection of persons who are adversely

affected by government action, and not the idea of democratic par-

ticipation in government. Thus the right to be heard may not include

390 General Principles of Constitutional and Administrative Law

access to policy information (see Bushell v. Secretary of State for the

Environment (1981); Hammersmith and Fulham LBC v. Secretary of

State for the Environment (1990)). Similarly, advisory or preliminary

governmental decisions do not attract a right to be heard unless the

decision has direct adverse consequences for the individual’s rights

(Norwest Holst v. Trade Secretary [1978] Ch. 201 – decision to start

an investigation: no right to be heard, compare Furnell v. Whangarie

High School Board [1973] AC 660: suspension of teacher pending

investigation, hearing required).

. The notion of a judicial decision remains significant in the sense that

a decision to remove existing legal rights usually attracts a hear-

ing, but the refusal of a discretionary benefit in the public interest,

without any specific entitlement, may not (see Schmidt v. Home Secre-

tary (1969): extension of immigration permit; McInnes v. Onslow-

Fane (1978): refusing a referee’s licence, Re Findlay (1985): parole,

change in policy). However, a decision to refuse a benefit which can

only be made on limited ground or which involves accusations

of misconduct or bad character will probably attract a hearing (see

R. v. Gaming Board ex parte Benaim and Khaida (1970); R. v. Army

Board ex parte Anderson (1992); R. v. Secretary of State for the

Home Department ex parte Fayed (1997)), as perhaps will other

cases where it would be unfair to deny a hearing, e.g. where impor-

tant property or environmental interests are in issue.

. Other factors might override the right to a hearing. In particular,

national security (CCSU v. Minister for the Civil Service (1985)). The

need to act in an emergency will also exclude at least a prior hearing

(R. v. Secretary of State for Transport ex parte Pegasus Holdings Ltd

(1988): air safety). A hearing might be excluded where a decision

affects many people so that a hearing would be impracticable, or

where large numbers compete for scarce resources, for example

applications for University places or in respect of general decisions

such as school closures which do not concern the interests of the

persons affected. On the other hand where a policy decision, for

example to close an old people’s home directly relates to the interests

of the persons concerned, there may be a collective right to be

consulted, although not necessarily a hearing in individual cases (see

R. v. Devon County Council ex parte Baker (1995).

. A hearing may be excluded when the court thinks that the outcome

of the decision was not affected. There have been judicial warn-

ings against this which seem to violate the basic principle that the

courts are concerned with legality, not merits (see John v. Rees

(1969); R. v. Environment Secretary ex parte Brent LBC [1983] 3 All

391

Judicial Review of the Executive: The Grounds of Review

ER 321 at 357; Cheall v. Apex (1983); cf. Cinnamond v. British Air-

ports Authority (1980)).

16.6.3 The content of a fair hearing

A flexible concept of ‘fairness’ also determines the ingredients of a

hearing. There are no fixed requirements. Everything depends on the

particular circumstances. It is sometimes suggested that ‘fairness’

applies only to non-judicial decisions with fixed standards to judicial

decisions. However, in both cases the overriding test is what is required

in the particular circumstances to enable the citizen to know the case

he has to answer and to answer it (see Lloyd v. McMahon [1987] 1

All ER 1118 at 1161). The following factors seem to be particularly

important.

. Article 6 of the European Convention on Human Rights (fair trial)

applies to decisions which affect ‘civil rights and obligations’. A fun-

damental aspect of the right to a fair trial is ‘equality of arms’, in the

sense that the parties must be on a equal footing. However, it has

been emphasised that, although the right to an overall fair trial is

absolute, particular ingredients such as disclosure of information are

not absolute and that a ‘fair balance ’ based on proportionality must

be struck between the public interest and the rights of the individual.

This is similar to the domestic approach (see Brown v. Stott (2001):

requirement to give incriminating information and below, 18.3.1).

. The more serious the consequences for the individual the higher the

standard of hearing that is required. To this extent the notion of a

judicial decision remains important. At one end of the scale, pre-

liminary or advisory investigations at best entitle a person to be told

only an outline of any accusations against him and to answer them

(Maxwell v. Trade Department (1974); R. v. Commission for Racial

Equality ex parte Cotterel and Rothon (1980)). At the other end of

the scale, a person accused of misconduct leading to deprivation of a

public office or other valuable right is normally entitled to see all the

evidence and to cross-examine witnesses (R. v. Army Board ex parte

Anderson (1991)). Administrative convenience cannot justify refus-

ing to permit a person to call witnesses although the tribunal does

have a residual discretion in the matter.

. Fairness is a minimum standard to be balanced against the govern-

ment’s right to decide its own procedure. For example there is no

right to legal representation unless skilled legal support is absolutely

necessary (Hone v. Maze Prison Visitors (1988)), and formal rules

392 General Principles of Constitutional and Administrative Law

of evidence are not required (Mahon v. Air New Zealand (1984)).

Indeed an oral hearing is not necessarily required (Lloyd v. McMahon

(1987)). On the other hand, those where existing rights are affected by

a decision must be given an opportunity to be heard. Moreover, if an

enquiry is held, as is the case with planning and other land use

decisions, the decision maker cannot take new factual material into

account without giving the parties an opportunity to comment (see

Elmbridge BC v. Secretary of State for the Environment (2002).

. As we have seen a legitimate expectation might confer a right to

be heard as an aspect of fairness (see e.g. CCSU v. Minister for the

Civil Service (1985); R. v. Secretary of State for Transport ex parte

Richmond BC (1994) and cases above 16.4.6). However, the courts

will give effect to a legitimate expectation only where do so would

be fair in all the circumstances. For this reason it is questionable

whether the notion of legitimate expectation adds anything to the

general concept of fairness. For example the claimant must disclose

all relevant facts (R. v. IRC ex parte MFK Underwriting Ltd (1990)).

16.6.4 Natural justice and the ECHR

The common law is re-enforced by Art. 6 of the European Conven-

tion on Human Rights which states that ‘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 covers much of the same ground as the common law although

it requires particular rights in criminal cases. However, the common

law does not necessarily require a public hearing (see Bentham v.

Netherlands (1985); R. v. DPP ex parte Kebilene (1999)). It is also

arguable that under the Human Rights Act 1998 the right to a fair trial

would require legal representation at least in the case of judicial

decisions.

The relationship between the common law and the European

Convention on Human Rights is determined firstly by what is meant

by ‘civil rights and obligations’ and secondly by the fact that statute

can exclude the right to a fair hearing but under the Human Rights

Act 1998 only where this is the only possible interpretation of the Act.

According to the ECHR an administrative decision does affect civil

rights and obligations in cases where it interferes with existing rights,

for example tax or land use decisions, or where the citizen has par-

ticular entitlements, for example to social security payments. In other

393

Judicial Review of the Executive: The Grounds of Review

cases, involving the conferring of discretionary benefits, such as some

immigration cases, Art. 6 would not necessarily apply. In R. (Alcon-

bury) v. Secretary of State (2001), Lord Hoffmann regretted this rela-

tively broad approach. He would have preferred an approach based on

the separation of powers, that Art. 6 should not apply to policy

decisions taken in the public interest for which the decision maker is

responsible to an elected body such as land use planning decisions,

even though these affect property rights but should be confined to

private law adjudication, the direct purpose of which is to determine

individual rights in other words to judicial decisions in the traditional

sense. However, as Alconbury makes clear, the jurisprudence of the

ECHR takes a broader approach.

Nevertheless there is a distinction between policy decisions and

judicial decisions. This relates to conflicts of interest (below 16.6.5)

and, in cases involving political discretion, allows a more limited right

to be heard. This reflects political and administrative realities and does

not necessarily follow the equality of arms principle Thus Art. 6 seems

to reflect the common law approach (see below 18.3.1, R. (Alconbury)

v. Secretary of State (2001)).

16.6.5 Bias

The idea of an impartial and independent judge is a fundamental

aspect of the rule of law. However, complete impartiality is impossible

to realise since bias is inherent in human nature. The law has to

compromise, and has done so by distinguishing between different

kinds of decision and different kinds of bias. The decision maker need

not actually be biased (this would fall under the head of irrelevant

considerations). The bias rule has traditionally been concerned with

the risk or appearance of bias, hence the well-known dictum of Lord

Hewart in R. v. Sussex Justices ex parte McCarthy [1924] 1 KB 256 at