Administrative Law Values IV: Procedural Fairness
I have a new essay on SSRN, “Administrative Law: A Values-Based Approach“, prepared for the inaugural Public Law Conference at the University of Cambridge later this year. This is the latest in a series of mini-posts. Download the whole essay here.
It has long been understood that the rules of procedural fairness vary according to context. One can perceive, in the determination of what process is due in a particular context, the importance of administrative law values.
Consider the question of scope: to what sorts of decision do procedural rights attach? Knight v. Indian Head School, Division No. 19, is a leading Canadian case on procedural fairness. In her majority reasons, L’Heureux-Dubé J. envisaged a broad scope for procedural fairness, conceiving of it as “a general right”, which would arise “autonomous of the operation of any statute”. Here, the rule of law, with its concern for the dignity of the individual, is dominant.
Contrast Mathews v. Eldridge, in which the Supreme Court of the United States laid down a three-part balancing test for determining whether procedural rights should be accorded to individuals: first, consider the importance of the decision to the individual; second, consider the utility of the requested procedure in reducing error; and third, consider the government’s interest in minimizing the costs of administrative decision-making. This balancing test is far removed from the individual-focused framework developed by the Supreme Court of Canada in Knight. Dignity interests infuse only the first part of the Mathews balancing test. Indeed, insofar as they are present, they are tied to the second factor – the practical effectiveness of granting the requested procedural right, which has as its source the principles of good administration. And of course, the third factor – efficiency – also emerges from the value of good administration.
There are several categorical, values-based exclusions to the duty of fairness. Most prominently, legislative action has traditionally not been subject to the safeguards of procedural fairness. Where primary legislation is concerned, “parliamentary tradition” and the doctrine of parliamentary sovereignty limit due process to the cut and thrust of parliamentary debate. And it has regularly been said that, where administrative action takes legislative form, procedural fairness is excluded. Separation-of-powers and democratic concerns are most commonly invoked to justify this position. Justificatory arguments have also been based on accountability to the legislature. As Justice Holmes once put it, in such situations, individuals’ “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule”. Yet where action that is legislative in character touches a small number of people, rule-of-law concerns push reviewing courts to impose procedural protections.
As to the content of procedural fairness, “the so-called rules of natural justice are not engraved on tablets of stone”. Context, when it comes to procedural fairness, is everything: “what the requirements of fairness demand…depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in question”. To translate “character”, “kind” and “framework” into the language of values: good administration, the rule of law (in terms of the relative impact on individuals of the decision) and democracy provide the context which allow reviewing courts to determine whether or not to impose procedural safeguards.
Rule-of-law concerns are often dominant. After all, procedural fairness cases invariably involve a person (occasionally a legal person) who contends that his or her rights have been infringed, that they have been “subjected to pains or penalties”. And the more severe the pains and penalties, the greater the individual’s claim to procedural protection: “The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated”.
The greater the effect, the greater the dignity interest served by according robust procedural rights. Recognition that “[i]n the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts” has underpinned the expansion of procedural protections. This concern for individual dignity and autonomy is underpinned by the substantive aspect of the value of democracy, which privileges participation by individuals when state action relevant to them is proposed. Good administration often supports these rule-of-law based claims, as when participatory rights would reduce the risk of error.
Yet these individual procedural rights may be tempered by considerations of good administration: “If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply”. Indeed, “[a]t some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost”.
A good example of the creative tension between the rule of law and good administration is Bushell v. Secretary of State for the Environment. A local inquiry was held into the routing of a motorway. One of the elements relied on by the inspector in coming to his conclusions was a central government report on traffic volumes, a report based on various assumptions and statistical models. Lord Diplock accepted that fairness required that those opposed to the motorway project have a right to “be given sufficient information…to enable them to challenge the accuracy of any facts and the validity of any arguments”, that supporters “should also be heard” and that “those adversely affected by the modification should be given an opportunity of stating their reasons for objecting to it”. Yet these rights had to give way in some circumstances to good administration:
Proceedings at a local inquiry at which many parties wish to make representations without incurring the expense of legal representation, and cannot attend the inquiry throughout its length ought to be as informal as is consistent with achieving those objectives. To “over-judicialise” the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.
As Lord Lane put it, the result of permitting cross-examination would have been “an even lengthier hearing without any appreciable advantage”. Moreover, an attack on the policy of central government would not be appropriate. A local inquiry was no place to impugn the “reliability and statistical validity” of a model applied nationwide. Good administration pre-dominated again.
The right to reasons is another site of creative tension, one which, moreover, demonstrates the dynamic potential of values. Concern for individual dignity and autonomy suggests that a right to reasons ought to be recognized: “Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given”, “thereby contributing to a more willing acceptance of the decision” such that “where the decision has important significance for the individual”, reviewing courts ought to impose a duty on administrative decision-makers to give reasons: “It would be unfair for a person subject to a decision…so critical to their future not to be told why the result was reached”. Moreover, the provision of reasons would mean that the exercise of government power “is less likely to be, or to appear to be arbitrary, if the decision maker formulates and provides reasons for his decision”.
Good administration pulls in two ways. On the one hand, militating against a right to reasons are concerns of efficiency:
These include the possibility that an additional burden will be cast on administrative officers and that increased cost and delay may be entailed and the further possibility that…[a right to reasons] might in some cases induce a lack of candour on the part of the administrative officers concerned.
On the other hand, reasons may lead to more accurate decision-making:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review. 
Separation-of-powers concerns may also be relevant. Accordingly, the Irish Supreme Court recognized a right to reasons where the Minister’s failure to provide any meant it was not possible for the individual “to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review”. Similarly, in R. v. Secretary of State for the Home Department, ex parte Doody, Lord Mustill was concerned that an individual could not mount an “effective attack” on a sentencing decision taken by the executive without reasons – “I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene…” – a concern that outweighed any democracy-based concerns that the legislature had accorded the decision-maker an unfettered discretion. And in cases where an appeal has been provided for by statute, democracy concerns suggest that a duty to provide reasons is an uncontroversial corollary of the legislative decision to provide a means of appeal. Attention to rule-of-law concerns, and the adoption of a new perspective on the principles of good administration and democracy, has led courts to insist ever-more that individuals have a right to receive reasons from administrative decision-makers.
Hovering over all content issues – save for situations in which a procedural right is constitutional in nature – is the prospect of legislative intervention. Democracy concerns mean that clear statutory language is pre-dominant. Where procedural rights are excluded or compromised by express statutory language, values cannot come to the rescue. American courts, concerned in addition by good administration, have warned courts “against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress”. And in situations where the legislature has entrusted a decision-maker with a measure of discretion, reviewing courts must factor this legislative choice into the procedural fairness calculus.
 See e.g. Russell v. Duke of Norfolk,  1 All E.R. 109, at p. 118.
 After the fashion of modern courts and commentators, I use the terms procedural fairness, procedural rights and duty of fairness interchangeably, to replace the older label “natural justice”.
See generally, David Mullan, “Fairness: The New Natural Justice” (1975), 25 University of Toronto Law Journal 281; Martin Loughlin, “Procedural Fairness: a Study of the Crisis in Administrative Law Theory” (1978), 28 University of Toronto Law Journal 215.
  1 S.C.R. 653 [Knight].
 Knight at p. 668. Emphasis added.
 424 U.S. 319, at p. 335 (1976).
 Whether the exclusions are truly categorical is doubtful. As Estey J. unwittingly put it, in a decision which recognized (at p. 758) an exclusion in respect of legislative action: “It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply”. Attorney General of Canada v. Inuit Tapirisat,  2 S.C.R. 735, at p. 755.
 Good administration rears its head in “emergency” situations, allowing officials to abrogate procedural rights:
Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision.
Cardinal v. Director of Kent Institution,  2 S.C.R. 643, at p. 655.
 Authorson v. Canada (Attorney General), 2003 SCC 39,  2 S.C.R. 40, at para. 37.
 Bates v. Lord Hailsham,  3 All E.R. 1019, at p. 1024: “I accept that the fact that the order will take the form of a statutory instrument does not per se make it immune from attack, whether by injunction or otherwise; but what is important is not its form but its nature, which is plainly legislative”.
 Though see Attorney General of Canada v. Inuit Tapirisat,  2 S.C.R. 735, at p. 754 for an argument based on “practicality”. See similarly, Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, at p. 445 (1915).
 Wilson v. Esquimalt and Nanaimo Railway Company,  1 A.C. 202, at p. 213: “The appointed authority for dealing with the matter, it must be remembered, was the Executive Government of the Province directly answerable to the Legislature…”
 Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, at p. 445.
 See e.g. Londoner v. Denver, 210 U.S. 373 (1908); Homex Realty v. Wyoming (Village),  2 S.C.R. 1011, at p. 1031 (“purported culmination of an inter partes dispute conducted on adversarial lines…”); Bank Mellat v Her Majesty’s Treasury (No. 2)  UKSC 39,  3 W.L.R. 179.
 Lloyd v. McMahon,  1 A.C. 625, p. 702, per Lord Bridge of Harwich.
 Lloyd v. McMahon,  1 A.C. 625, p. 702, per Lord Bridge of Harwich. See also Morrissey v. Brewer, 408 U.S. 471, at p. 481 (1972): “[D]ue process is flexible and calls for such procedural protections as the particular situation demands”; R. (L.) v. West London Mental Health NHS Trust,  EWCA Civ 47.
 Selvarajan v. Race Relations Board,  1 All E.R. 12, at p. 19.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 25. See also New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 S.C.R. 46, at para. 125, per L’Heureux-Dubé J., dissenting:
The determination of [the existence of a right to counsel] must take into account the important value of meaningful participation in the hearing, taking into account the rights affected, and the powerlessness that a reasonable person in the position of the claimant may legitimately feel when faced with the formal procedures and practices of the justice system.
 R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery,  1 All E.R. 651, at p. 667. And consider the words of Denning L.J. in Russell v. Duke of Norfolk,  1 All E.R. 109, at p. 119:
[The] penalty of disqualification [from racing] is the most severe penalty that the stewards can inflict. It is the same penalty as that which is imposed on persons guilty of corrupt practices. It disqualifies the trainer from taking any part in racing and thus takes away his livelihood. Common justice requires that before any man is found guilty of an offence carrying such consequences, there should be an inquiry at which he has the opportunity of being heard.
See most notably Ridge v. Baldwin,  A.C. 40; Goldberg v. Kelly, 397 U.S. 254, at p. 264 (1970). But see also how a concern for individuals’ livelihood has extended to decisions affecting their academic prospects and credentials: Khan v. University of Ottawa (1997), 34 O.R. (3d) 535.
 To the extent that clear expressions of legislative intent can effectively oust procedural protections, the majoritarian aspect of democracy too plays a role. Indeed, the requirement of a ‘clear statement’ that the legislature wishes to oust procedural protections itself reinforces the value of democracy, for the lawmaking body must “squarely confront what it is doing and accept the political cost”. R. v. Secretary of State for the Home Department, ex parte Simms,  2 A.C. 115, at 131, per Lord Hoffman (H.L.).
 See e.g. Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police,  1 S.C.R. 311, at p. 328. A good example is May v. Ferndale Institution, 2005 SCC 82,  3 S.C.R. 809, at paras. 117-118, where a majority of the Court made reference to the need to allow individuals a means of “understanding” a decision-making process so that they could make a “meaningful response” to the case against them, and “rebut the evidence relied upon”. See also New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 S.C.R. 46, at para. 72: “If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests”.
 Pearlberg v. Varty,  1 W.L.R. 534, at p. 547.
 Mathews v. Eldridge, 424 U.S. 319, at p. 348 (1976). See also Hannah v. Larche, 363 U.S. 420 (1959).
  A.C. 75.
  A.C. 75, at p. 96.
 Report of the Franks Committee on Administrative Tribunals and Enquiries (Cmnd. 218, 1957), at para. 269, describing the purpose of a local inquiry as “to ensure that the interests of the citizens closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections, and to ensure that thereby the Minister should be better informed of the facts of the case”.
  A.C. 75, at p. 97. The reference to fairness might suggest that rule-of-law concerns were foremost, but that the application of the concept was to be judged by reference to a variety of good-administration concerns suggests that Lord Diplock sought to give effect to both values:
In the instant case, the question arises in connection with expert opinion upon a technical matter. Here the relevant circumstances in considering whether fairness requires that cross-examination should be allowed include the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed cross-examiner, and, most important, the inspector’s own views as to whether the likelihood that cross-examination will enable him to make a report which will be more useful to the Minister in reaching his decision than it otherwise would, is sufficient to justify any expense and inconvenience to other parties to the inquiry which would be caused by any resulting prolongation of it.
  A.C. 75, at p. 122.
  A.C. 75, at p. 100.
 Compare Innisfil (Township) v. Vespra (Township),  2 S.C.R. 145, where examination of a government policy was permitted, but strictly in the context of its application to local conditions.
 See generally Mark Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?”  Public Law 56.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 39.
 Taxquet v. Belgium (2012), 54 E.H.R.R. 26, at para. 91.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 43. See similarly R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 565.
 Public Service Board of New South Wales v. Osmond (1986), 63 A.L.R. 559, at p. 572, per Deane J. Emphasis added. See further T.R.S. Allan, “Procedural Fairness and the Duty of Respect” (1998), 18 Oxford Journal of Legal Studies 497.
 Public Service Board of New South Wales v. Osmond (1986), 63 A.L.R. 559, at p. 567, per Gibbs C.J.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 39. See also R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 563: “without [a right to reasons] there is a risk that some supposed fact which [the individual] could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered”.
 Mallak v. Minister for Justice,  IESC 59, at para. 65.
  1 A.C. 531.
 See e.g. Norton Tool Co. v. Tewson,  1 W.L.R. 45; Public Service Board of New South Wales v. Osmond (1986), 63 A.L.R. 559, at p. 562.
 Arguments may also be based on necessary implication from express statutory language. Compare e.g. Roberts v. Parole Board,  UKHL 45,  2 A.C. 738 with R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 562.
 See e.g. Federal Communications Commission v. Schreiber, 381 U.S. 279, at p. 290 (1965), noting “the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position that federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved”.
 Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc., 435 U.S. 519, at p. 525 (1978).
 Agencies “should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties”. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, at p. 143 (1940). See e.g. Local Government Board v. Arlidge,  A.C. 120, at p. 144, per Lord Parmoor; R. v. Secretary of State for the Home Department, ex parte Doody,  1 A.C. 531, at p. 561, per Lord Mustill.
This content has been updated on July 9, 2014 at 09:09.