Wednesday 6 November 2013

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

By "fairness", I mean what is variously (and not always perfectly accurately) described as "natural justice", "procedural fairness", "duty of fairness", "duty to act fairly" and "fair procedures" -- the principle is that administrative decisions must be reached after a process that is fair to the parties concerned. This usually implies various procedural requirements -- such as notice and the right to make submissions -- which vary according to the context. One might not have the right to a lawyer in contesting one's administrative law grade, but one might well have the right to a lawyer to defend a charge of plagiarism.

But why should administrative decision-makers have to act fairly at all? Lord Reed responded sharply to the argument of lower-court judges that the purpose of fairness in administrative law is to guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision-maker, due consideration being given to the interests at stake.

Lord Reed acknowledged that one of the "virtues of procedurally fair decision-making is that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested" (at para. 67). But there is more.

First, fair procedures respect the dignity of the individual subject to them. Someone affected by a decision is likely to feel a "sense of injustice" (at para. 68) if they do not have a say in the decision-making process:
  1. This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as "the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result" Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63). In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, "Offenders' Views on Risk Assessment", in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield). Other research reveals the frustration, anger and despair felt by prisoners who perceive the board's procedures as unfair, and the impact of those feelings upon their motivation and respect for authority (see Padfield, Understanding Recall 2011, University of Cambridge Faculty of Law Research Paper No 2/2013 (2013)). The potential implications for the prospects of rehabilitation, and ultimately for public safety, are evident.
Second, fair procedures serve the rule of law: "Procedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their action" (at para. 70). In other words, the practical utility of fair procedures may serve the purpose of good administration by improving the quality of decisions, but this practical argument also resonates in terms of the rule of law. Otherwise, law in action will diverge from law in the books thereby undermining the integrity legal system.

I said above that this is "one of the things" I find interesting about Osborne. I will have another post shortly on the question of deference to decision-makers' procedural determinations.


  1. Another interesting aspect of Osborn is that while Lord Reed places heavy emphasis on the importance of procedural protections in saving individuals distress and anxiety, he gives the damages claim for claimed distress suffered in consequence of the breach of Article 5(4) short shrift. This is particularly striking given that the empirical research cited in the paragraph you quote ([70]) indicates that those in the claimant's position are likely to suffer distress and despair at the unfairness of the procedures they are subject to. Another interesting aspect of the decision is that in Lord Reed's summary of his decision at [2](xiii) he states that damages will ordinarily not be recoverable for such distress, yet this general proposition is not stated outside of the summary, and consequently there is no reasoning orientated towards justification of this rule in the terms of the judgment. (Indeed in the earlier decision of Faulkner Lord Reed had reasoned around a ECtHR decision - Nikolova - holding that awards should generally not be made for distress for procedural violations of Art 5(4), saying the decision could not be said to lay down a rule and that there was, despite Nikolova, a practice of making awards for distress caused by procedural violations of Article 5(4); it is not clear how this marries up with what is said in Osborn).

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  3. That's interesting - we take fair procedures as a given, but it's good to understand the whole rationale. This will be helpful when figuring out the boundaries of procedural fairness in a given case - I always try to bring it back to the purpose to determine whether a particular procedural measure is justified in a given case. Thanks for sharing!