The right to fair procedures in public decision making is accepted internationally as a basic principle of justice. The European Convention on Human Rights provides that in the determination of a person’s civil rights, he is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The concept is reflected in the United States, in the wide-ranging constitutional “due process” requirement.
The right to fair procedures in decision making by public bodies is recognised as of such fundamental importance, that it is now firmly recognised as a Constitutionally protected right; so-called constitutional justice. Prior to recognition of under the Constitution, the concept of “natural justice” expressed basic principles of fair procedures. The basic elements of natural justice, are that the decision maker should be independent, impartial and unbiased and that each party should be entitled to put his case to the decision maker.
In the last 50 years, the Irish courts have promoted the notions of natural justice and fair procedures into constitutional justice. Because the procedures have constitutional status, all existing laws must be interpreted in a manner consistent with the principles of constitutional justice. A law that fails to respect the principles, may be invalidated in whole or in part.
The courts have developed the concept of constitutional justice beyond the basic principles of natural justice. Constitutional justice may require that in some cases, reasons must be given. It may require that there be a right to legal representation in certain cases. It will usually require that the burden of proof lies on the State where important constitutional rights such as property, liberty and livelihood may be adversely affected by the State’s decision. It will usually require that decisions must be made reasonably promptly.
The principles of fair procedures and constitutional justice apply in the fullest form in court proceedings. Court rules and practice, and the law of evidence provide detailed rules which uphold the principles of fair procedures. Occasionally, constitutional justice has required that court and evidence rules be expanded. The Courts have required that in more serious summary criminal cases in the District Court, that constitutional justice may require prior disclosure of evidence, where this is required to do justice.
The degree and rigour of fair procedures that will be required, will depend on the nature of the public decision making and procedure involved. Some decisions and proceedings are “administrative” in nature. Others are so-called “quasi-judicial” in nature. The latter will require more rigorous procedures.
Impartial Decision Maker
Actual bias will rarely be shown. Judges, tribunal members and decision makers will generally recuse themselves at an early stage, where there is the possibility of bias. Apparent bias may arise where a decision maker has an indirect interest or stake in the matter. There is a risk that even an indirect interest in the outcome may have an unconscious influence on the decision maker. The principle requires that there be confidence in the decision maker so that he must not even appear to be biased.
Questions may arise as to whether the decision maker should excuse himself where the possibility of bias or prejudice is remote. It is a matter of degree and judgment as to how close the alleged bias must be, before it operates to disqualify the decision maker. Bias may be shown where the decision maker has made statements revealing opinions and beliefs which impinge on the decision-making process. Matters of family connection and interest, ownership of investments and financial interest will be relevant.
An interest in the outcome will usually require the decision maker to step down. If the outcome might be objectively seen as capable of being influenced by the alleged bias, then the decision maker should generally excuse himself. The more linked the source of bias is to the particular decision, the more likely that decision maker must be excused.
Suspicion of Bias
Where the decision maker has been involved in an earlier stage of the decision-making process, there may be bias in favour of upholding an earlier decision. For this reason, administrative bodies by practice or law, usually ensure that those who hear appeal or higher level review, have not had prior involvement.
Where there is reasonable suspicion or danger of bias, then the decision makers should excuse themselves. There must be a close and clear link between these decision maker’s association and interest and the outcome of the case. The matter is considered from the perspective of a reasonable hypothetical person, who has knowledge of the relevant facts and whose reasonable suspicions might be aroused. In marginal cases, it may be enough that the decision maker discloses his possible conflict of interest and the parties accept him as a decision maker, nonetheless. More difficult cases are those where the party is aware of a general possibility of bias but does not object.
Institutional Bias and Practical Considerations
The principle that the decision maker should be unbiased is subject to practical limitations. Administrative bodies may make decisions which affect their resources or may hear appeals from decisions of the Department or body of which they form a part. This commonly arises where a particular department or body administers a body of legislation which affects the rights and obligations of members of the public. It might be against the Department’s interest to adjudicate in favour of an applicant or appellant.
The State strikes a balance between administrative practice and convenience and the possibility of institutional bias. The courts are more reluctant to allow claims of bias on the basis of broad institutional loyalty alone.. Considerations of administrative practicality may make it unreasonably expensive and burdensome to provide fully independent adjudication for all administrative decisions. In such cases, it is considered reasonable for the State to vest decision-making powers bodies in Departments and bodies with particular expertise and in the interests of efficiency.
The Department of Social Protection hears decisions in relation to social welfare claims. Its appeals body has some degree of autonomy but is not completely independent of the Department. The Revenue Commissioners assess tax liability. Appeals are made in the first instance to the Appeals Commissioners who usually have a Revenue background, but are legally independence.
Right to be Heard and Notice
The right to be heard in relation to a prospective public body decision is fundamental. The right requires that the decision maker fairly assess what that person affects offers and submits. However, the right to “hearing” does not imply a right to an oral hearing in all cases. The principle applies to specific decisions on matters affecting a particular person, not to the general exercise of State powers and functions which affect a class or group of persons.
What the principle requires varies considerably, depending on the type of decision concerned. A hearing may range from the opportunity to submit arguments and reasons, to a full-blown oral hearing with formality equivalent to a court and a right to legal representation. The legislation establishing the relevant institutions and the providing the relevant rights will usually provide arrangements and structures designed to satisfy the right to fair procedures.
The right usually requires that the person affected, should have notice of a prospective decision which might adversely affect his interests. The person concerned will generally be given notice of the grounds on which the decision may be taken, the facts and circumstances on which the relevant decision may be based and in some cases, the possible consequences of the decision with the affected person. He must be given the opportunity to meet the case and make representations to the decision maker.
Requirements of Fair Procedures
The degree of fair procedures required will depend on the circumstances. The person affected may be entitled to documents and other materials relevant to matter concerned and not just details of the bare decision as it affects him. In some cases, particulars of other decisions and precedents may require to be published, in order that the person affected can examine the criteria and principles which inform the decision maker. On the other hand, where the person concerned is well aware of the particular matter or the accusation or case against him, it may not be necessary for notice to be given.
There may be a denial of the opportunity to meet a case when the decision maker takes account of extraneous information. The person concerned may not counter or meet the matter, because he has no knowledge of it. Such a decision may be unlawful, in that the decision maker is taking account of considerations, which may be improper under the relevant legislation.
Where a public body is given advice or information relevant to the decision, the person affected may be entitled sight of it for the purpose of commenting on its correctness. On the other hand, where a public body has specialist knowledge of the matters concerned in a general sense, this cannot be practically given to each person who might be affected by its decision. This would differ to using specific bases of decision, which are undisclosed to the person affected. It is a question of degree as to whether the matter relied on is part of his general experience in the area concerned.
The requirement of fair procedure applies both to persons affected by the decision and also to objectors who are affected by it. Similarly, the objections should generally be disclosed to the applicants. The degree to which an objector to a decision must be given the right to be heard will depend on the extent of his interest in the matter. If the objector does not have the same interest as the applicant and this may be reflected in a lesser level of rights.
Oral Hearing and Legal Representation
In some cases, there may be a right to an oral hearing. Where a person’s important personal rights are potentially affected, they must be given a copy of the evidence which reflects on the rights concerned, (e.g. his good name), be allowed to cross-examine his accusers (by counsel if required), be allowed to give evidence in contradiction and be allowed to address the decision making body, by counsel if necessary, in defence.
In some cases, there may be a right to a lawyer in order to give effective expression to the right to be heard. In many other cases, the involvement of lawyers will complicate proceedings and add expense. It will often be disproportionate in cost terms and be unnecessary to a fair hearing. The seriousness of the consequences and the nature of the right concerned will be the principal factor in determining whether a lawyer is justified.
In some cases, representation by others such as trade union official may suffice. There may or may not be choice of lawyer. A lawyer may be assigned to multiple parties. In some cases, the restriction of multiple representations may be reasonable.
Generally, there is no obligation for the State to pay for a person’s lawyers where they are necessary for the provision of procedures in administrative quasi-judicial cases. However, where the liberty of the person, such as mental health cases are involved, the state may be obliged to provide a person with a lawyer where he cannot afford to retain one.
In some cases, legislation may provide for the payment of costs as with representation before tribunals of enquiries established by the Oireachtas.
Other Hearing Issues
Quasi-judicial hearings may be in public. Tribunals and administrative bodies need not follow the strict rules of evidence. Hearsay evidence may be allowed, as occasions require.
The question may arise as to whether they must be in public. Often the tribunal may have a party to hold up the hearing other than in public. It may be particular privacy considerations.
Justice delayed can be justice denied in the context of court proceedings. However, in administrative and quasi-judicial context a delay will not of itself invalidate proceedings. However, if delay so long as to prejudice the person in meeting the case, there may be procedural unfairness.
Reasons for Decision
In the last 50 years, both legislation and the courts’ understanding of procedural fairness has increasingly required public parties to give reasons for their decisions.
A reasoned decision is not required by constitutional principles of justice in all cases. It will depend on
- the nature of the particular function
- the framework in which it is given and
- the possible detriment to the person affected by reason of failure to state reason.
The failure to state reasons may be of particular relevance for the legislation to set up a right of appeal. Bodies exercising a so-called quasi-judicial function i. e, similar to a court must usually give reasons for their decisions, as it will be usually required to allow superior courts to exercise judicial review of their decisions. The requirement extends to purely administrative bodies where they affect legal rights and obligations but not all such cases.
The Freedom of Information Act has created substantial rights for the public. The legislation provides that the designated head, on application in writing giving must give a reason for a decision within four weeks, together with the statement of findings of material facts on which the decision is based. The legislation applies to most public bodies.
The reasons need not be comprehensive. In most cases, a short reasoned statement giving the broad indication of the basis of the decision is likely to suffice.
The more serious and far-reaching the decision, the more the decision should be intelligible, rational and demonstrate the basis of the decision in terms of the relevant policy or grounds.
In some cases, the public body may be obliged to keep a record of the materials and matters on which it bases its decisions.
Formerly the rules of constitutional justice were largely limited to so-called quasi-judicial type decisions. These were bodies with many of the characteristics of a court in terms of findings, investigations, which had consequences for a person’s key rights such as livelihood, good name, property, et cetera.
However, in the last 20 to 30 years the constitutional justice principle has been applied more broadly to decisions which might be categorized as administrative rather than quasi-judicial. They may, for example, govern a privileged or a discretionary benefit rather than a right.
The requirements apply where the decision of a public body impact upon a individual’s rights. Discretionary benefits and grants to which there may not be an absolute legal entitlement are usually subject to constitutional justice requirement.
The principle of constitutional justice do not apply in relation to investigatory functions by the police and other bodies. Constitutional justice is embodied in the ultimate court’s proceedings themselves.
See the employment law section in relation to the application of constitutional justice to a decision affecting office holders. Office holders include major public office holders, designated civil servants and officers of other public authorities. The concept has even extended to company directors on the basis that they hold an office under statute, i. e., the role of director.
It appeared at one stage, that constitutional justice would be brought into the employment relationship on a more express basis. However, it has not been extended to a pure private contract. The Unfair Dismissal Act has achieved the same result by requiring procedural as well as substantive fairness in decisions concerning dismissal.
Clubs and Private Bodies
The principle has been extended to sporting clubs. The principles have been applied to disciplinary action by public and quasi-public bodies.
The principle has been extended to trade unions and private professional bodies which regulate particular businesses, suspend or termination of membership may require the application of constitutional justiceLicensing and the reissue of licenses are subject to the fair procedures. This is because they have an impact on livelihoods.
Decisions affecting Major Interests
Decisions in the areas of planning permission, environmental licenses, land registration another decisions which impact upon a person’s property are subject to the requirements.
Decisions concerning personal liberty and freedom in the mental-health sphere have been subject to much more rigorous fair procedures under the Mental Health Act 2006.
Tribunals and enquiries and inquest which impact upon a person’s good name, property et cetera, must follow the constitutional justice.
The principles have been readily applied in relation to deportation procedures notwithstanding many jurisdiction constitutional rights of no nationals are limited in relation to deportation and immigration matters.