P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
10.2 Exclusion or Limitation of Natural Justice
At the outset it must be emphasised that the rules of natural justice do not nec- essarily apply to all exercises of powers. It will be seen subsequently that the court has previously drawn a distinction between ‘administrative’ and ‘judicial’
functions, applying the rules of natural justice to the latter. This distinction is now less frequently drawn so that even where a function might have been defined as ‘administrative’ there may now be a limited duty to observe some aspect of natural justice, ie a duty to act fairly. It has been seen that the rules are in two categories: the rule against bias and the rule that no person shall be con- demned without being given reasonable opportunity for his case to be heard.
Before these two rules are examined, it is necessary to determine the broad cir- cumstances in which the law may exclude natural justice, to define the legal dis- tinction between ‘administrative’ and ‘judicial’ functions, and to examine the meaning of the rather nebulous duty to act ‘fairly’.
In Gaiman v National Association for Mental Health (1971) Megarry J observed that ‘... there is no simple test, but there is a tendency for the court to apply the principles [of natural justice] to all powers of decision unless the circumstances suffice to exclude them’. On those occasions when the court has excluded nat- ural justice the circumstances have usually involved (1) express or implied statutory limitations, or (2) the absence of any rights meriting protection.
10.2.1 Statutory provisions
Expressly or impliedly, some statutory procedures may seek to exclude or limit the rules of natural justice. The Town and Country Planning Act 1990 contains
many examples. In convening an Examination in Public of a structure plan, the Secretary of State for the Environment is empowered to nominate those objec- tors who are to be permitted a hearing at the Examination and to define the issues to be examined by the participants (Town and Country Planning Act 1990 (as amended)). In determining an application for planning permission the Act indicates a limited category of applications which must be publicised (s 65, which ought to be read in conjunction with the Town and Country Planning (General Development) Order 1995). Any person making objections in response to such a publicised application is legally entitled to have his written objections taken into account by the local planning authority (Act of 1990 s 71). This clearly excludes any right to an oral hearing before the authority prior to a decision being taken and also excludes any legal right to make representations for any person in respect of applications which fall outside a category requiring public- ity. In practice, many authorities advertise most, if not all, applications and vol- untarily take account of the written representations made. Finally, the statutory rules of procedure governing public local inquiries into planning appeals (and compulsory purchase and highway proposals) expressly exclude any questions being raised as to the merits of government policy. This exclusion of discussion about the merits of government policy was in contention at an inquiry into highway proposals in Bushell v Secretary of State for the Environment (1980).
Somewhat surprisingly the House of Lords decided that the inspector’s refusal to permit cross examination on traffic flow forecasts was justifiable since these forecasts are facets of government policy relating to criteria for motorway con- struction. The courts may be increasingly sympathetic to the idea that, in so far as inquiries are involved in the consideration of objections or recommendations and reporting to the relevant minister, any refusal of cross-examination of wit- nesses does not amount to a breach of natural justice. This conclusion is based on the observation that such inquiries are concerned with non-justiciable issues:
R v London Regional Passenger Committee, ex p London Borough of Brent(1985).
10.2.2 Absence of rights
An absence of rights has usually given rise to a presumption that the rules of natural justice do not apply. A good illustration of the court’s attitude comes in McInnes v Onslow-Fane (1978). McInnes applied to the British Boxing Board of Control for a boxing manager’s licence, demanding an oral hearing of his case together with notice of any case against him so that he could disabuse the Board of any allegations which might appear in such a case. His application was refused without reasons being given, whereupon McInnes applied to the court for a declaration that the Board had acted unfairly and in breach of the rules of natural justice. The court refused to grant the declaration on the basis that the Board had discharged its necessarily limited obligations in relation to natural justice by reaching an honest conclusion, without bias, without reference to any capricious policy. It was suggested by the court that all the facets of natural
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justice would apply where a licence or other right was being forfeited or renewed whereas a ‘first time’ applicant for a licence would not have any legiti- mate expectation of a licence being granted so that in law he would have no right to notice of any case against him and no opportunity to be heard. Where the licensing body is not a ‘domestic’ organisation like the British Boxing Board of Control but a statutory body, the relevant statutory provisions governing its licensing responsibilities will (as in the example of the local planning authority) tend to indicate that the rules of natural justice are either excluded or limited.
The present case is one of a long line of decisions where the court has drawn a distinction between ‘rights’ and mere ‘privileges’ although even in this latter instance where no rights are at issue the court will usually insist that, as in McInnes, there is a measure of fairness in the procedures. That limited measure of fairness may involve the need to recognise either the rule against bias, as in McInnes, or the rule that no person shall be condemned without a reasonable opportunity for his case to be heard, as in R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association (1972). By way of contrast, in R v Secretary of State for the Home Department, ex p Gunnell (1983), the granting of parole was characterised as a privilege, not a right. Furthermore, the fact that the Parole Board was performing an administrative judicial function meant that the appli- cant could not claim that material on the case should be disclosed to him or that he should have an oral hearing. The position in relation to procedures before the Parole Board has now altered somewhat since Ex p Gunnellwas decided due to a change in Home Office policy which has been reflected both in case law and statutory developments. In R v Parole Board, ex p Wilson (1992), the Court of Appeal upheld the applicant’s appeal against an earlier High Court refusal to disclose to him adverse information relating to his request for release from prison. It was felt that in order for the applicant, a discretionary life sentencer, to be in a position to make effective representations to the Parole Board so as to disabuse them of the view that he was unacceptably dangerous to the public, it was necessary that he should be made aware of what had been said against him.
The Court of Appeal considered that a further justification for their finding was afforded by the fact that provisions of the Criminal Justice Act 1991, which were shortly to come into force at the time of the decision, would give the applicant a statutory entitlement to disclosure subject to any public interest immunity that could be established (see also Doody v Secretary of State for the Home Department (1993) discussed below).
10.2.3 Preliminary processes
There has been resistance to the application of natural justice where the process in question has not led immediately to a final decision, prejudicing any rights.
In other words, where there is something in the nature of a two-stage process, the first stage involving a preliminary investigation may not affect the individu- al’s rights. This is frequently the case where a suspension takes place pending
the outcome of a disciplinary investigation. In Lewis v Heffer(1978) the National Executive of the Labour Party suspended the local committees and officers of a constituency Labour Party, pending the result of an inquiry by the Executive. A local officer sought an injunction to prevent the suspension on the ground that the Executive had acted unlawfully and in breach of natural justice. Similar grounds were used subsequently by the plaintiff and another officer when they found that the Executive had it in mind to suspend them from Labour Party membership pending the result of the same inquiry. In refusing injunctions in both cases, the court considered that suspension as a temporary measure may be a matter of ‘good administration’ pending investigation so that natural jus- tice ought not to apply. A further example of a finding that the rules of natural justice had not been breached occurred in Herring v Templeman(1973), where it was held that there was no implied obligation for an academic board to accord a hearing to a student who was facing the prospect of being expelled from a teacher-training college since the board only had power to make recommenda- tions. It was the governing body which was charged with the responsibility of making a final decision, and hence it was they who owed the student a duty to act fairly by affording him an adequate opportunity to explain before them why the recommendations of the academic board should not be accepted.
Nevertheless, the House of Lords has taken the view that even in the course of preliminary proceedings, any provisional finding in the establishment of a prima faciecase could significantly prejudice a person’s rights and interest to the extent that a hearing ought to be given to that person (Wiseman v Borneman (1971)). In Re Pergamon Press (1970) Board of Trade inspectors appointed under the Companies Act to investigate and report on the affairs of a company were under a duty to act fairly and to give anyone whom they proposed to condemn or criticise a fair opportunity to answer what was alleged against them. It was claimed by the company’s directors that they had a legal right to see transcripts of witnesses’ evidence against them and to cross-examine those witnesses. This claim was rejected by the court where Lord Denning indicated that there was no need to quote chapter and verse so that a mere outline of the charge will usually suffice. Further proceedings in the case led to the court’s conclusion that there was no legal obligation requiring the inspectors to indicate their tentative con- clusions for comment by the parties prior to publication of their report (Maxwell v Department of Trade and Industry(1974)).
10.2.4 Absence of contractual or similar relationships
The absence of any contractual of similar relationship with a non-statutory domestic organisation such as a trade union or professional association may indicate that natural justice does not apply to its transactions with individuals (Byrne v Kinematograph Renters Society (1958)). The main justification for this proposition is that the absence of a contractual or similar relationship means that the individual has not associated himself with the organisation and any
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express or implied obligation on its part to comply with natural justice.
Nevertheless, the cases are unpredictable in this context. For example, in Nagle v Feilden (1966) the stewards of the Jockey Club failed to persuade the court to strike out Nagle’s claim for a declaration that the Club’s policy of refusing train- ers’ licences to women was contrary to public policy on the ground that the plaintiff’s right to work was in issue. It is difficult to reconcile this decision, indicating the relevance of natural justice to a licence application, with the state- ment of principle in McInnesto the effect that the rules do not apply to an initial licence application but would apply to a revocation or renewal.
10.2.5 Professional advice
The rules do not apply to professional advice although there is an exception where a person’s rights may be affected. This is seen clearly in R v Kent Police Authority, ex p Godden (1971). A police doctor and a consultant concluded that Godden, a police officer, was mentally ill but the court required that their reports be produced to Godden’s own consultant when the police authority sought to employ the same police doctor in order to certify Godden as perma- nently disabled for the purpose of the police pensions regulations. Had the authority chosen a different police doctor for this latter purpose then no doubt natural justice would not have applied in this doctor-patient relationship on the ground that Godden’s rights might not have been prejudiced. The general absence of natural justice from the professional relationship can also be seen in Hounslow London Borough Council v Twickenham Garden Developments Ltd(1970).
Under a contract of the Royal Institute of British Architects an architect gave appropriate notice that a contractor had failed to proceed ‘regularly and dili- gently’. It was decided that the notice was not void for want of natural justice since although an architect must retain his independence when exercising his skilled professional judgment, there was nothing in the nature of a ‘judicial’
determination requiring application of the rules.
10.2.6 Disciplinary proceedings
In some cases, disciplinary proceedings can occur without reference to natural justice, usually where no rights of the individual are liable to be prejudiced.
Whether the rights of the individual are in issue seems sometimes to depend on the severity of any punishment which may result from the disciplinary proceed- ings: a rather uncertain basis for the law. Accordingly, in Ex p Fry (1954) a fire- man was punished for disobeying an order. He alleged that the hearing was unfair but at first instance the court decided that the law could not interfere with the exercise of a disciplinary power in a service such as the fire service.
Such cases would suggest that natural justice should be excluded from discipli- nary proceedings in institutions and organisations where discipline is perhaps the sole responsibility of the person in charge, such as a headmaster. In refer-
ring for present purposes to the governor of a prison, Lord Denning stated in Becker v Home Office (1972) that a governor’s life would be intolerable if the courts were to entertain actions for breaches of natural justice from disgruntled prisoners. The Court of Appeal in R v Deputy Governor of Camphill Prison, ex p King (1985) repeated these sentiments, referring to the possible weakening of a governor’s authority. The prisoner’s remedy lay in a complaint to the board of visitors and then (if necessary) a petition to the Home Secretary. Only thereafter might there be a legitimate challenge before the court. By way of contrast, it has been held that in R v Hull Prison Board of Visitors, ex p St Germain(1979) that nat- ural justice did apply to disciplinary functions in prisons carried out by boards of visitors. Megaw LJ emphasised a difference between the disciplinary func- tions of the governor and those of the board, acting as a ‘judicial’ tribunal:
While the governor hears charges and makes awards his position in doing so corresponds to that of a commanding officer or a school master. Both good sense and the practical requirements of public policy make it undesirable that his exercise of this part of his administrative duties should be made sub- ject to certiorari. The same, however, does not apply to the adjudications and awards of boards of visitors who are enjoined to mete out punishment only after a formalised inquiry and/or hearing.
There are difficulties in defining material differences between the disciplinary functions of the board and the governor, eg outlined in the same case by Shaw LJ in relation to the levels of punishment to be administered, so that the law really seems to rest on judicial policy. The House of Lords acknowledged the reality of this position in their important decision in Leech v Parkhurst Prison Deputy Governor(1988) which served to clarify the law by removing the distinc- tion between prison governors and boards of visitors so that the adjudications of both became subject to judicial review. In Leech, the appellants had been found guilty of offences contrary to the Prison Rules 1964 and accordingly they had been punished by having awards of a number of days’ loss of remission made against them. Following a careful examination of the authorities, the House of Lords came to the conclusion that the reasoning underpinning the decision in Ex p King could no longer be supported and hence the decision should be overruled. Lord Bridge considered that the views expressed in Ex p Kingas to why judicial review should be refused were ‘based on subjective judi- cial impression’ and whilst he acknowledged that his own views were ‘no less speculative’, he was nevertheless of the opinion that:
... if the social consequences of the availability of judicial review to supervise governors’ disciplinary awards are so detrimental to the proper functioning of the prison system as King’scase predicts, it lies in the province of the legis- lature not of the judiciary to exclude the court’s jurisdiction.
It is worth noting that since the decision in Leech, boards of prison visitors have in fact lost their disciplinary functions following a recommendation of the Woolf Report, Prison Disturbances, April 1990, Cm 1456 (1994). Finally, in the context of an employment relationship, the court may be prepared to imply nat-
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ural justice, eg for the purpose of defining a procedure for dismissals, but only where the employee enjoys a statutory status or office in public employment or service (Malloch v Aberdeen Corporation (1971)). Consequently, a private employer is able to dismiss an employee without a hearing at common law (Hill v CA Parsons & Co(1972)).