Principles of procedural justice
3.1Courts and tribunals have always needed rules of procedure to govern their proceedings. Those rules were not chosen randomly. They were chosen because they were internally consistent and appropriate to the types of case and to the nature of the proceedings involved. They also, no doubt, reflected the preferences of those who made them. The modern approach is to have general principles and consistency of provisions across jurisdictions.
3.2Over the past 100 years, basic principles of procedural justice have been developed and recognised. In any modern system of procedure, these principles describe, explain, justify, control the content of, and govern the application of the specific rules of procedure. All the principles set out below are consistent with, and provide considerations relevant to the application of, the overriding objective and the duty to co-operate.
3.3Viewed broadly, there have been four stages to the development. At first, the courts imposed minimum judicial control over tribunals. Next, principles appropriate to tribunals were identified and developed separately from the courts. Then, general principles were developed for court procedure. Finally, those principles were adopted and adapted for tribunals.
The essential features of judicial decision-making
3.4The courts applied the most basic principles of procedural justice to tribunals: they had to comply with the principles of natural justice and to act only within their powers. This was the first focus for procedural justice: the judge’s approach to the proceedings in an individual case. These principles reflect or embody basic characteristics of judicial decision-making: that the parties must be given the chance to put their sides of a case and the judge must decide objectively under and according to law.
3.5The Donoughmore Committee on
Ministers’ Powers, which reported in 1932,
1Cmd. 4060 (1932). considered that these were sufficient safeguards for the tribunals of the time.
2Section III para 11.Effective access
3.6This assumed that the parties were before the tribunal and able to participate in the proceedings. Those assumptions were not necessarily valid for the types of case that come before tribunals. Tribunals responded to this by developing a second focus for procedural justice: the parties, especially lay parties. They developed procedures and approaches that increased the chances of effective access for lay parties, whether represented or not.
3This is now an aspect of article 6. Again, the focus is on the individual case.
3.7The approach developed by the tribunals was bolstered by Professor Kathleen Bell’s
Research Study on Supplementary Benefit Appeal Tribunals, which was published in 1975. This considered the approach of the tribunal to the parties and the atmosphere in the hearing, recommending the enabling approach towards the parties.
4Review of Main Findings: Conclusions: Recommendations (1975) pp18 and 22. See chapter 1.Systemic considerations
3.8Professor Bell’s study exemplified the approach of identifying the principles underlying the disparate practices of different tribunals, building on best practice and leading the way in the development of new principles. In doing so, a new focus was added beyond the individual case: the requirements of the tribunal system as a whole, including the efficient use of public funds and the appropriate allocation of resources between cases.
General principles
3.9It was natural that these three component features of procedural justice – the essential nature of the judicial functions, effective access and systemic considerations – should be embodied in a wider analysis that identified the unifying and underlying general principles of procedural justice.
The Franks Committee
3.10The Franks Committee on
Administrative Tribunals and Enquiries, which reported in 1957,
5Cmnd 218 (1957). went beyond basic protection for the parties and based its recommendations around three principles appropriate in the context of tribunals
– openness, fairness and impartiality:
In the field of tribunals openness appears to us to require the publicity of proceedings and knowledge of the essential reasoning underlying the decisions; fairness to require the adoption of a clear procedure which enables the parties to know their rights, to present their case fully and to know the case which they have to meet; and impartiality to require the freedom of tribunals from the influence, real or apparent, of Departments concerned with the subject-matter of their decision.
6Cmnd 218 (1957) at para 42.The Woolf Report
3.11In his report on
Access to Justice,
7HMSO 1996. Lord Woolf identified the principles on which a system of civil justice should be based:
The system should:
(a)be just in the results it delivers;
(b)be fair in the way in treats litigants;
(c)offer appropriate procedures at a reasonable cost;
(d)deal with cases with reasonable speed;
(e)be understandable to those who use it;
(f)be responsive to the needs of those who use it;
(g)provide as much certainty as the nature of particular cases allows; and
(h)be
effective: adequately resourced and organised.
8Access to Justice, HMSO, 1996, Section 1, para 1. 3.12He then described the features of a system based on those principles. Shorn of their supporting paragraphs, the features were:
9Access to Justice, HMSO, 1996, Section 1, para 9.•litigation will be avoided wherever possible;
•litigation will be less adversarial and more co-operative;
•litigation will be less complex;
•the timescale of litigation will be shorter and more certain;
•the cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases;
•parties of limited financial means will be able to conduct litigation on a more equal footing;
•there will be clear lines of judicial and administrative responsibility for the civil justice system;
•the structure of the courts and the deployment of judges will be designed to meet the needs of litigants;
•judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols;
•the civil justice system will be responsive to the needs of litigants.
3.13This found legislative expression in the requirement of section 1(3) of the Civil Procedure Act 1997 that: ‘The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is acces-sible, fair and efficient’.
3.14Lord Woolf’s principles were developed for the courts, but they had the potential to be extended to tribunals.
The Bowman Report
3.15The Committee chaired by Sir Jeffery Bowman investigated appeals, following and building on the Woolf proposals. In chapter 2 of its Review of the Court of Appeal (Civil Division) of September 1997, it set out a number of general principles governing appeals:
•a civil appeal should be dealt with in ways which reflect the principles which Lord Woolf recommended the civil justice system should meet;
•an appeal should not be seen as an automatic further stage in a case;
•an individual who has grounds for dissatisfaction with the outcome of his or her case should always be able to have the case looked at by a higher court so that it can consider whether there appears to have been an injustice and, if so, allow an appeal to proceed;
•an appeal process should ensure that, so far as is practical, uncertainty and delay are reduced to a minimum;
•there is a private and a public purpose of appeals in civil cases: the private purpose is to correct an error, unfairness or wrong exercise of discretion which has led to an unjust result. The public purpose is to ensure public confidence in the administration of justice and, in appropriate cases, to:– clarify and develop the law, practice and procedure; and– help maintain the standards of first instance courts and tribunals;
•appeals should always be dealt with in ways that are proportionate to the grounds of complaint and the subject matter of the dispute;
•more than one level of appeal cannot normally be justified except in restricted circumstances where there is an important point of principle or practice or one which for some other special reason should be considered by the Court of Appeal.
3.16As with Lord Woolf’s principles, these principles were developed for the courts, but they had the potential to be extended to tribunals.
The Leggatt Report
3.17Sir Andrew Leggatt, in the report that followed his
Review of Tribunals,
10Tribunals for Users – One System, One Service (2001). identified:
… the watchwords which should inform every tribunal: informality, simplicity, efficiency, and proportionality.
11Tribunals for Users – One System, One Service (2001) at para 31.3.18That deceptively simple analysis paved the way for adapting to the tribunal context the general principles that had been developed for the courts. That task was made easier by the proposal that there should be a coherent structure for tribunals to replace the separate tribunals for each jurisdiction.
The Council on Tribunals
3.19Shortly after the Leggatt Report was published, the Council on Tribunals
12Subsequently replaced by the Administrative Justice and Tribunals Council, which has itself now been abolished. published a detailed
Framework of Standards for Tribunals.132002, updated in 2006. These ranged from the most basic constitutional principles, like independence, to the most practical, like payment of expenses:
Standard 1: Tribunals should be independent and provide open, fair and impartial hearings
a)Tribunals should be free to reach decisions according to law without influence (actual or perceived) from the body or person whose decision is being challenged or appealed, or from anyone else.
b)Judicial officers should be independent.
c)Appointments to judicial office should take account of the diversity of our society, and the composition of tribunals should be monitored to inform those making appointments.
d)Tribunal hearings should be open and fair.
Standard 2: Tribunals should be accessible to users and focus on the needs of users
a)Potential users of the tribunal should be given access to information about its services.
b)Procedural Rules should be short, clear, simple, and up to date.
c)Forms should be short and simple.
d)The papers required by the tribunal should be proportionate and appropriate to the issues at stake.
e)Tribunals should provide users with clear information about how their case will be handled.
f)A complaints policy and procedure should be in place in relation to the performance of both judiciary and administration, and should be publicised to users.
g)Tribunals should establish and publish a clear policy on the payment of travelling expenses.
h)Tribunals should establish and publish a clear policy on equal treatment and continuously monitor compliance.
Standard 3: Tribunals should offer cost effective procedures and be properly resourced and organised
a)Judicial resources should be managed to provide a good service, and to ensure that individuals sit often enough to maintain knowledge and skills.
b)Standards for judicial behaviour and performance should be set and monitored.
c)Cases should be heard, and a final decision given, within a reasonable period.
d)Programmes of induction and refresher training should be provided for tribunal chairs, members and administrative staff.
e)Appropriate levels of administrative and clerical support should be provided for the proper conduct of tribunal hearings.
f)Standards for hearing venues and for service and performance should be set and monitored in consultation with users.
g)Appropriate planning, budgeting and monitoring procedures should be in place.
h)Where relevant, tribunals should work with first tier decision-makers and/or second tier tribunals continuously to improve the ‘end to end’ experience for the user (e.g. to ensure the whole appeals process is completed in a reasonable time).
Under TCEA
3.20These principles are distilled for the tribunal system in the duties of the Senior President and in the objectives of the rules of procedure. TCEA s2(3) contains the core of the Senior President’s duties:
(3)A holder of the office of Senior President of Tribunals must, in carrying out the functions of that office, have regard to–
(a)the need for tribunals to be accessible;
(b)the need for proceedings before tribunals–
(i)to be fair; and(ii)to be handled quickly and efficiently;
(c)the need for members of tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters; and
(d)the need to develop innovative methods of resolving disputes that are of a type that may be brought before tribunals.
The Senior President is only under a duty to have regard to the factors listed, but those factors are stated as unqualified needs. And their nature gives an imperative to the duty to have regard to them.
3.21TCEA s22(4) sets the objectives for the rules of procedure:
(4)Power to make Tribunal Procedure Rules is to be exercised with a view to securing–
(a)that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done;
(b)that the tribunal system is accessible and fair;
(c)that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently;
(d)that the rules are both simple and simply expressed; and
(e)that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
The language of ‘with a view to securing’ repeats section 1(3) of the Civil Procedure Act 1997. But the reality is that, as with CPR, these provisions set the agenda for the Rules Committee in making rules of procedure.
The overriding objective and the duty to co-operate
14See below at para 3.103 onwards.3.22These two concepts are central to the modern approach to procedural justice. They embody and give effect to the general principles identified by Lord Woolf, Sir Andrew Leggatt and the Council on Tribunals. And in turn those principles inform the way that those concepts are applied.
3.23The overriding objective concerns the tribunal’s attitude to the proceedings and the parties, both individually and systemically. The essence of a tribunal’s procedure is to deal with cases fairly and justly. It is not necessary for legislation so to provide and it does not. Rather it recognises this and identifies it as the overriding objective of the rules of procedure. This elevates the rules above being rules for their own sake. It gives them a purpose and provides that they must be interpreted and applied to achieve that end. In keeping with the common law approach, this is achieved through principles of interpretation and through the balancing of factors relevant in a particular case rather than by creating rights and duties.
3.24However, the overriding objective does affect the substance of procedural justice. The legislation specifies some of the features that allow a case to be dealt with fairly and justly. It thereby gives substance to the vague but important concept of justice. It does not replace the practice of itemising individual manifestations of justice in tribunals’ practices and rules of procedure; this continues. Instead, it goes beyond them, identifies the unifying and underlying principles, and elevates them to an overriding position.
3.25The duty to co-operate defines the attitude of the parties and their representatives
15Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912 at [37]. to the proceedings and to each other. They must help the tribunal to further the overriding objective and co-operate with the tribunal generally. The rules impose that duty in terms rather than recognising it as a feature of tribunal procedure. The effect of the duty is to make the tribunal and the parties partners in a common enterprise of ensuring that the proceedings are conducted smoothly and that the rules of procedure are operated to fulfil their purpose rather than for tactical, partisan advantage.
Procedural and substantive justice
3.26In theory, substantive and procedural justice are separate. Substantive justice is the aim of judicial proceedings; procedural justice is the means to achieving it.
16Collins MR in In the Matter of an Arbitration between Coles and Ravenshear [1907] 1 KB 1 at 4. In operation, they are not so distinct.
17Lord Phillips in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at [60]. The rules of procedure may increase or reduce the chances of the parties’ securing what they regard as substantive justice, as the following examples show.
3.27Any aspect of procedure that enhances access to the judicial process increases the chances that the party will secure substantive justice.
3.28Any aspect of procedure that limits the amount of time or money that a party may devote or expect others to devote to a case reduces the chances that the party will secure substantive justice. It is no longer possible to say as Bowen LJ said in
Cropper v Smith18(1884) 26 Ch D 700 at 710. that: ‘Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy’. It is now recognised that matters in controversy must be decided in a context of discipline. That discipline relates to matters of cost and time.
3.29As to cost, as Knight Bruce V-C recognised in
Pearse v Pearse:
19(1846) 63 ER 950 at 957. ‘Truth, like all good things, may be loved unwisely
– may be pursued too keenly – may cost too much.’
3.30And time spent on one case may be to the detriment of other cases and of the system as a whole.
3.31In an individual case, time spent on a claim for disability living allowance under the special rules that apply to the terminally ill may prevent an award being made during the claimant’s life-time and a delay in a child’s statement of special educational needs may have an impact on the child’s education in the meantime.
3.32Beyond the individual case, in a world of limited administrative and judicial resources the time spent on one case is time that cannot be devoted to another and time wasted on one case is time lost to other cases. Before CPR, Lord Roskill noted in
Ashmore v Corporation of Lloyds.20[1992] 1 WLR 446.Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.
21[1992] 1 WLR 446 at 448.Lord Woolf MR repeated this warning under CPR in
Biguzzi v Rank Leisure plc22[1999] 1 WLR 1926. in the context of whether to strike out a case:
… the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect of the court’s ability to hear other cases if such defaults are allowed to occur.
23[1999] 1 WLR 1926 at 1933.3.33The requirement of a decision within a reasonable time under article 6 recognises that it is permissible and necessary to limit the time devoted to an individual case.
3.34The result is that, on the modern approach, there is no contrast or conflict between substantive and procedural justice. Procedure exists to assist in achieving substantive justice and substantive justice can only be attained in the context of procedural justice. But procedural justice constrains the extent to which substantive justice can be realised and thereby helps to define what substantive justice in law means. Substantive justice has no meaning in law once separated from the procedure that provides the only context in which it can exist.