Procedural Fairness: a View from 20,000 Feet
Should courts defer to administrative decision-makers on procedural matters? As things stand (for the most part), judicial intervention is warranted whenever a decision-maker fails to live up to judicially developed conceptions of fairness. But this judicial supremacy sits uneasily with the modern, context-sensitive duty of fairness.
Historically, automatic intervention whenever a decision-maker deviated from the norm made some sense. Inferior tribunals were subject to judicial review only when acting “judicially” (e.g. R v Electricity Commissioners, ex parte London Electricity Joint Committee Co.  1 KB 171). A deviation from the rules of natural justice was a failure to act judicially, which reviewing courts could correct, just as an appellate court would correct the errors of a lower court. In addition, courts could be said to have expertise in respect of the content of the rules of natural justice, since these same rules applied to their own functions.
But from the 1960s onwards, natural justice was ousted by a duty of fairness that applies to a wide range of administrative action but which applies in a context-sensitive manner. Once natural justice came to be replaced by fairness, the justifications for intrusive judicial review of procedural questions ceased to be persuasive.
By definition, a process that contravenes the applicable rules of procedural fairness is unfair. That is why a breach of procedural fairness does not (save very exceptional circumstances) entail the reversal of a decision, but its annulment. A breach of procedural fairness doesn’t mean that a decision is wrong, it means that the process is wrong and unfair. To put it another way: the fact that a party is not afforded the opportunity of being heard means that the process is fundamentally vitiated, not that the ultimate decision did not reach the right result. That is why, in my view, an administrative decision rendered where the process is wrong and unfair can never stand. As such, I can’t accept that the standard of review would be reasonableness. With all due respect, that would be going too far.
This content has been updated on November 30, 2014 at 15:29.