Natural justice
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem).
[6]: 584–585 In Baker v Canada (Minister of Citizenship and Immigration) (1999),[8] the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker.
[10]: para 32 Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual.
This principle embodies the basic concept of impartiality,[11] and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially.
However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds' worth of shares in the Grand Junction Canal.
However, one of the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI.
[20]: 465 Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial.
[25] The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
[20]: 477 In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005),[14] Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality similar to that of reasonable suspicion.
[28]: 107–8 As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.
[33] However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires,[33]: 401 hence making the judgment void.
Lord Esher said in Allison v General Council of Medical Education and Registration (1894)[34] that the participation of a disqualified person "certainly rendered the decision wholly void".
[33]: 405 However, in the United Kingdom prior to Ridge v Baldwin (1963),[36] the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863).
In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice.
[48] As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody (1993): "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.
"[49][6]: 582 It has been suggested that the requirement of prior notice serves three important purposes:[48]: 127 The British courts have held it is not enough for an affected person to merely be informed of a hearing.
Likewise in Surinder Singh Kanda v Federation of Malaya (1962),[11] a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing.
However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face—"Natural justice does not generally demand orality".
It was held by the House of Lords in AF,[54] applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom (2009),[55] that a person accused of terrorism against whom a control order has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate.
If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi, if the open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence.
It was held in Re Teo Choo Hong (1995)[57] that the function of a lay member of a lawyers' disciplinary committee was to observe and not cast a vote or make a judgment.
[59] However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice.
A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case.
[35]: 192 In R v Secretary of State for Home Department, ex parte Tarrant (1983),[62] Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:[62]: 285–6 It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality before the law.
Furthermore, the judge will be performing two completely incompatible and irreconcilable roles—one as the adjudicator, the other as the de facto defence counsel.In Singapore, the right to legal representation is contingent on the nature of the inquiry.
However, since Article 12 of the Constitution of Singapore guarantees equal protection under the law, it has been suggested that greater weightage should be accorded to this procedural right when balancing it against the competing demand of efficiency.
stated: "I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.
"[67]: 352 It has been stated that "no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions".
First, procedural participation by people affected by a decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily.
[48]: 110 Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative discretion.
