The Decision-making Process (II)
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____________________