1. Why shouldn’t it be up to an administrative authority to decide what process is appropriate? Why should judges decide?

• Don’t forget that administrative authorities do have responsibility for deciding their own processes, and judges will not generally replace them with processes that the judges would have chosen. A process must be unfair before the court will interfere.
• Is it a breach of comity between the courts and administrative authorities, if the court requires processes that the judges consider fair?
• Should judges defer at all to the views of administrative authorities, in considering whether their processes are fair?

2. The law of due process is in flux. Considering (1) the ‘continuing momentum in administrative law towards openness of decision-making’ (Lord Mustill in R v Home Secretary, ex p Doody [1994] 1 AC 531, 566), and (2) the effect of the Human Rights Act, do you think the procedures that were refused in the following decisions would be ordered by the courts today?

B Johnson & Co v Minister of Health [1947] 2 All ER 395

• A piece of land was subjected to a compulsory purchase order.  The procedure refused was disclosure to the owners of correspondence between the local authority and the Minister (before the Minister embarked on his quasi-judicial function of considering objections to the proposed order, at which point there was disclosure of local authority communications).
• Consider the developing rule of administrative law that there should be disclosure of information necessary for the purposes of participation by an interested person in the decision-making process.  Was disclosure of this correspondence (indicating the owner-objectors were speculative builders, thus implying they would make ill-founded objections to the compulsory purchase order) necessary for the fruitful participation of the objectors?
• Consider the view of Cohen LJ in B Johnson & Co:

‘[The Minister’s] duty as regards information received by him in his executive capacity is to use that information fairly and impartially.  This may involve that he should give an opportunity to the authority or to the objector…of dealing with some allegation in a communication he has received….’  (405-6)

Cohen LJ went on to say that failure to so act would render the Minister responsible to Parliament only.  However, given that today there is a general requirement of due process not limited to judicial or quasi-judicial decisions, does this attitude indicate a court today might hold that disclosure of the correspondence is required by the general duty incumbent on the Minister to act fairly?

• The refusal of disclosure in this case was tied up with a certain conception of administrative decision-making.  Is the law still as Lord Greene MR states it?

 ‘(G)enerally speaking, the idea that a Minister can be compelled to disclose to anybody information of that kind, which he has obtained as a purely administrative person, is alien to our whole conception of government in this country’.  (401)

Does a move away from this notion towards a conception of open government mean a court today would find for the claimant-objectors as regards disclosure?

• Might Article 1 of the First Protocol to the European Convention of Human Rights help someone today in the position of the claimant-objectors? Could this Article be used in conjunction with the Article 6 ECHR right to a fair and public hearing to argue for disclosure of the relevant correspondence?

Nakkuda Ali v Jayaratne [1951] AC 66 (PC)

• The procedure refused in this case was the participation of a licence holder in the decision by the Ceylon Controller of Textiles to revoke his textile dealer licence on the grounds of unfitness to continue as a dealer. 
• Consider the move towards disclosure where it is necessary to allow participation of an interested person in the decision-making process. Could the licence holder argue that any possibility he had of disabusing the Controller of his assessment of unfitness would require disclosure of the grounds on which the Controller had based this assessment, and a chance to respond?
• Might the licence be a ‘possession’ within Article 1 of the First Protocol ECHR, and could Article 6 ECHR be used to argue that any decision in respect of the licence would require a fair and public hearing?  Or would a Convention argument run into difficulty because the licence is a ‘privilege’ and not a right?  
• Given the general requirement of due process which is now recognised, is it likely a textile dealer licence would be revoked without any procedural participation by the licence holder? Consider the grounds of revocation in Nakkuda Ali (that the dealer was unfit); is this a matter about which the dealer might have something to say that is relevant to the decision?
• Could the law on legitimate expectations help the licence holder?  Might a legitimate expectation argument work in conjunction with the Convention (Article 1 of the First Protocol, Article 6)?

McInnes v Onslow Fane [1978] 1 WLR 1520

• The court held that the British Boxing Board of Control was under no obligation to give an applicant even the gist of its reasons for refusing his application for a licence, nor to give any preliminary indication of those reasons, nor to give him an oral hearing.
• Consider the growing recognition of a duty to disclose information necessary to allow participation in the decision-making process by an interested person.  Would the reasons for the Boards refusal fall into this category of information?  Might the applicant argue that disclosure of the reasons of the Board is necessary to inform him of the issues to be addressed at the next stage?
• Is the Convention of any use to an applicant, who has neither a legal entitlement to nor a legitimate expectation of a licence?
• As regards the refusal of an oral hearing, is it likely that any information the applicant could have provided at an oral hearing would have added anything?
• Consider R v Gaming Board ex p Benaim and Khaida [1970] 2 QB 417 (an oral hearing is only required if fairness demands it for licence applications).

R v Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242

• Though there is a move towards open government, is there at present a general duty to give reasons? See Chapter 6.1.
• Assuming there is no general duty to give reasons, might the recent developments in the law mean that a particular duty to give reasons applies to this decision of the Council rating the Institute of Dental Surgery for the purpose of providing funding? 
• Might it be that, even today, the informed exercise of academic judgment does not, in fairness, call for reasons to be given?
• Is it likely that the Institute could argue disclosure of reasons is necessary to enable them to participate in the next stage of the decision making process? 
• Could the Convention help the Institute of Dental Surgery, given that the Council rating affects state funding for universities, rather than an individual right or obligation?

3. Can you reconcile the following two views?

• Lord Greene’s view in in B Johnson & Co v Minister of Health [1947] 2 All ER 395, that a minister’s duty to perform his functions honestly and fairly, ‘speaking generally, is not a matter with which the courts are concerned’ (400), and
• Lord Loreburn’s view in Board of Education v Rice [1911] AC 179 (HL) that listening to both sides fairly ‘is a duty lying upon every one who decides anything’ (182)
• Could it be the two judges had in mind non-legal duties, in which case their views could be reconciled?  For example, the Prime Minister ought to act honestly and fairly in recommending the appointment of the other ministers. But the issues at stake are not justiciable (see 7.3.1), even though they are matters of honesty and fairness.   So might Lord Loreburn have agreed with Lord Greene that unfairness or even dishonesty on the part of the Prime Minister in this decision may not be the court’s business?
• Might the nature of the decision in point have explained any inconsistency between the views of the two judges? Lord Greene was talking about planning decisions by a minister, and Lord Loreburn was thinking of a Board of Education with a statutory power to make a determination concerning ‘Whether the local education authority have in fixing and paying the salaries of the teachers fulfilled their duty’ (Rice (185)).

4. No one complains about lack of due process when they get the outcome they want. Sergeant Walker (R v Ministry of Defence ex p Walker[2000] 1 WLR 806) would not have been bothered if they had picked a good scheme without consultation; Charles Ridge (Ridge v Baldwin [1964] AC 40) would not have minded if the committee had got together without listening to him, and decided not to sack him. Cooper (Cooper v Board of Works (1863) 14 CB (NS) 180) would have had no complaint if the Board of Works had decided not to tear down his house, after considering it without talking to him. Does that mean that judicial review over mere procedures is pointless?

• Think about the three ‘process values’: promoting good decisions, respecting individuals and upholding the rule of law. 
• Consider what would be lost if judicial review were limited to the substance of a decision
• Can review into the substance ever be as penetrating as review into procedures? So would the judges be able to do less to promote good decision-making?
• Would the value of respect be adequately covered by focusing on outcomes? What about respect during the decision-making process? Since no government will always make the right decisions, is focusing on outcomes enough?  Consider the argument that, even if nothing can be learned from the person affected by a decision, the decision-maker must treat a person decently by letting him or her have a say.
• Is it enough for the rule of law that the right decisions are taken? Consider the value behind the rule of law (putting a check on arbitrary government).  Could this be assured through the necessarily more limited control of the courts over substantive decision-making?  Might process accountability itself be an obstacle to arbitrary government?
• Consider the tangible benefits that a process challenge can get for an aggrieved person:
  • The decision may be made again by a new body
  • The person may get a substantive outcome if it is too late for a new process to set things right (consider the damages Cooper got against the Board of Works for his house being pulled down without a hearing).