Natural Justice ? What does this really mean ?

[unclebulgaria67]

Hi

 

This is a question thread and not about a specific legal issue.

 

Sometimes when a decision is made by someone who is responsible for decisions affecting members of the public, the term "natural justice" is used.

 

What is actually meant by this term and does it have any proper legal standing ?

 

Is there a legal test applied by Courts/tribunals, where they examine whether "natural justice" has been served or considered by the public official making the decision ?  Is so,  is this test  purely a judgement call based on individual case merits or does it take into account case precedents which are thought to have considered similar arguments ?

 

Any thoughts ?

 

[BankFodder]

In terms of the practical application of the idea of "natural justice" nowadays, you will tend to find the term is used in relation to concepts such as the right to a fair trial, the right to have a fair hearing, the right to have a nonbiased judge, the right to have both sides heard.

However if you want far more interesting discussions then look up the place of "natural justice" in relation to the Nuremberg trials and how natural justice sits in relation to wicked or evil legal systems.

A particular problem during the Nuremberg trials is how one can lawfully justify criminalising and punishing an action of someone when that action was legal within the jurisdiction that they were operating. This is when you start to look around for some other basis or some other source of law. You could say that natural justice is an overriding set of values govern all human behaviour and certainly all laws and legal systems.



 

[unclebulgaria67]

Thanks for the reply. Makes perfect sense in regard to reason for asking the question.

 

 

[Ethel Street]

'Natural justice' is a term often bandied about by non-lawyers to mean some general idea of fairness but it has never meant that in law. It derives from two fundamental principles of English Common Law:

 

(1) The right to a fair hearing: nobody should be judged without a fair hearing at which they have the chance to respond to the evidence against them. 

(2) The right to an unbiased tribunal: courts and judges should be unbiased and have no personal interest in the outcome

 

Various related rights are associated with these two rights - the right to have legal representation, to know the charges against you etc, - but these (essentially procedural) rights flow from the two fundamental principles. It's similar to what is called 'due process' in the USA.

 

Because it's a common law principle there wasn't in the past a specific 'law of natural justice' that anyone could turn to. Like all common law, judges would have to 'find it' in the court decisions and precedents over the centuries.

 

However nowadays, whilst judges can still do that and use Common Law principles, it's more usual to cite Article 6 of the European Convention on Human Rights, incorporated into UK law in the Human Rights Act 1998 Schedule 1.  Article 6, "Right to a fair trial", is essentially a restatement into statute law of the traditional common law principle of 'natural justice' and so can be applied directly to any case before a UK court. s6 of the HRA  says "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

 

Is that any help?

Edited June 15, 2019 by Ethel Street

[unclebulgaria67]

So any Government official making a decision on behalf of a secretary of state need only evidence that they have given a fair hearing, not shown any bias or self interest in any decision they are making.

 

Which is why officials are expected to set out a written statement of their reasons as to how they have come to their decision.  This will detail the information they have considered, which needs to be everything that enables a fair hearing, the legislation that applies, what has happened that is relevant and then the rationale of how the decision has been arrived at. The member of the public would be given full information on the decision and any rights to appeal.

 

I only ask as the concept of natural justice, sometimes is stretched to mean a generous interpretation of the legislation derived guidance that applies. Which is not really what natural justice actually means.

 

If there is any doubt about legislation that has been passed, in terms of how it has been interpreted for guidance that has been produced, then I would expect a referral to be made to find out exactly how the  legislation should be applied based on specific circumstances.

 

 

 

 

[BankFodder]

On 15/06/2019 at 13:01, Ethel Street said:

'Natural justice' is a term ....

 

All of this is correct of course but it rather limits the idea of natural law. Natural law seeks to impose far higher and far reaching standards of justice and isn't effectively just a kind of synonym for common law. Natural law is taken to apply to all human activity regardless of the type of jurisdiction – common law, Roman law, Napoleonic law et cetera that happens to be in place in any particular geopolitical region.

You could almost say that natural law is a universal measuring stick for basic human standards. All democratic legal systems, at least, merely seek to codify and clarify natural standards for the avoidance of doubt – but it's no more than that. I suppose you could say that common law is the nearest thing you can get to natural law but common law is not a universal standard whereas natural law certainly is intended to be.

[Ethel Street]

I don't think we disagree BankFodder. I understood uncleb to be asking about natural justice in the context of the actions and decisons of UK courts and tribunals (English law). There is, as you say, a much wider philosophical dimension to 'natural law' but it isn't something, AFAIK, something that would be taken into account by an English court or tribunal except to the extent of the Human Rights Act.  But I'm not an expert and happy to see further information or links on this interesting subject.

Edited June 16, 2019 by Ethel Street

[unclebulgaria67]

Thanks for the replies. Very interesting subject !

 

I just wonder when Government policies are often heavily influenced by Treasury budgets, whether Parliament can fully take into account the standards expected.

 

Very little legislation is actually debated on the floors of Parliament and instead there are legislative committees, no doubt with officials including legal advisors commenting on what is being proposed.

 

Legislation when it is actually passed into law, is often not clearly drafted and does not make any practical sense in some situations. No doubt Civil Servants in Government departments try their best to offer clear guidance to officials who will be applying the guidance.  But the Court rulings and Tribunal decisions we see reported, offer up evidence that legislation and/or guidance has been wrongly applied or is ruled unlawful. 

 

When officials come to explain application of legislation in their written statements of reason, if they don't fully understand it, then you see where it might go wrong. They might fail to apply natural justice principles, as they have not realised that they did not have full information to inform a decision, they may have misinterpreted legislstion and in communicating their decision, they may have given incorrect information.

 

 

[BazzaS]

If the legislation is clear and made by Parliament (primary legislation), it won’t be subject to judicial review, though the higher courts can rule it incompatible with the Human Rights legislation.

 

Delegated legislation can be subject to judicial review, which is rooted in natural justice / the common law principles preventing irrational, unreasoned / unreasonable or biased (direct or indirect bias) decisions.

 

The cases: Pinochet (indirect bias), Porter (direct bias), Wednesbury (unreasonable) and CCSU (irrationality, illegality and procedural impropriety) spring to mind.