Fairness

Page 129: If the decision in R v Environment Secretary, ex p Hammersmith LBC [1991] 1 AC 521 (see 598-9) was right, is that because the law does not require central government to act fairly in limiting council spending? Or because it is fair for the central government to limit council spending without giving the council a hearing?

• Fairness is appropriate concern for the interests of a person or persons.
• Is it ok for the Prime Minister to decide how much central government funding to give to Hammersmith, without being appropriately concerned for the interests of Hammersmith?
• If that is not ok, that does not mean that it ought to be unlawful for her to make an unfair decision! The law should only require central government to act fairly in limiting council spending if courts can pass judgment on the issues without interfering inappropriately with the political structure of public finance.

Discretion as to procedures

Page 152: Inquiries, such as the ‘Bloody Sunday’ inquiry into deaths in Northern Ireland in R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855, have ‘wide discretion as to the procedure’ they take (Bushell v Environment Secretary [1981] AC 75 (HL) at 96). Why is that?

• Consider the purposes of public inquiries (see 13.13). They are very diverse, because an inquiry is always a one-off response by government in response to a crisis or scandal that calls for an investigation by an independent investigator.
• As Lord Diplock said in the Bushell case, ’quite unlike any civil litigation’ (Bushell pp 96-7). The purpose is to find out what went wrong in some situation, and the inquiry has procedural discretion to enable it to be flexible in finding the facts.
• The discretion is not unlimited (see R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855).

Secret hearings

Page 157: What would happen if secret hearings were not permitted in any court or tribunal?

• It would make no difference to the quality of decision making in very many cases, such as Bank Mellat, in which secret hearings are conducted just in case the secret information may prove important, when it is actually unnecessary (this is why the Supreme Court Justices were angry about the secret hearing in Bank Mellat –see p 157). In those cases, time and money would be saved if secret hearings were not permitted.
• In a case like R (Roberts) v Parole Board [2005] UKHL 45 (see p 151-2), if the Parole Board deciding whether to release Roberts were not able to consider information without showing it to him, then the Board would sometimes have to ignore (e.g.) highly relevant information as to whether Roberts would pose a danger to others, if he were released.
• According to the Supreme Court in Al Rawi v  Security Service [2011] UKSC 34, prohibiting secret hearings in civil actions in the High Court would be a way of upholding ‘the integrity of the judicial process and the reputation of English justice’ [83].