An Introduction to Administrative Law

By Peter Cane | Go to book overview

8
The Decision-making Process (II)

GENERAL INTRODUCTION

IN this chapter we will consider grounds of invalidity which relate to the procedure followed in the making of decisions and rules. In some cases, decision and rule making is governed by statutory rules of procedure. As we will see later, failure to comply with such statutory rules does not necessarily render a decision or rule invalid. Decision-makers exercising public functions are also subject to a set of common law procedural rules which are known collectively as the 'rules of natural justice'. The rules of natural justice embody two main principles: the rule against bias, which requires that a person must not be judge in his or her own cause (nemo iudex in sua causa); and that a person must be given a fair hearing (audi alteram partem).

The term 'natural justice' might be thought to suggest that these rules have some objective validity and that in these rules the law is simply giving effect to certain self-evident moral truths about how decisions ought to be made. There is a certain amount of truth in this. Concerning the rule against bias, most people would agree that there is good reason to be suspicious of a decision for or against a party made by a person who has an interest, financial or otherwise, in the decision. It is not necessarily the case, of course, that an interested decision-maker will, because of that interest, make an unfair decision. The decision-maker may succeed in standing back from the situation and deciding purely on the merits of the case. However, the point of this rule is not just that justice (or fairness) should be done but that it should also be seen to have been done. What matters is not whether the decision-maker was biased but whether he or she could reasonably appear to have been biased.1On the other hand, the appearance of justice does not guarantee that justice will be done, any more than the appearance of bias necessarily leads to a biased decision. But while the appearance of

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1
I have adopted this formulation despite the decision of the Court of Appeal in R v Inner West London Coroner, ex parte Dallaglio [ 1994] 4 All ER139. See further p. 177 below.

-160-

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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