C. How to improve current scheme?
The traditional utilitarianism philosophers like Jeremy Bentham and their modern adherents including Richard Posner[1] endorse a pragmatic approach[2] discussed above and a pure procedural fairness rule would ‘impose undue burdens on government’[3]. Lord Scarman also noted that the qualification of procedural fairness rule is helpful to ‘prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty…’[4] The underlying subtext is that the function of procedural fairness is not only to promote a fair procedure, but also to promote a procedure that produces a fair result.
However, the worry about the negative effects of the pragmatic approach has never fade away. Although still been limited within a small scope, the actual prejudice requirement is the Khyber Pass[5] to the procedural unfairness, and there is the risk of promoting the encroachment of the territory of procedural fairness and jeopardizing its special value. Shortly after the modern landmark case Ridge v Baldwin[6], academic criticism has pointed that the approach of procedural fairness adopted in this case could produce uncertainty, inconsistency and would be “frequently failing to distinguish between the substantive connotations of fairness and its procedural connotations.”[7] Jerry L. Mashaw[8] also specifically criticized the problems of implementing a calculus of the value of different kind of interests adopted by the US case Mathews v. Eldridge[9].
To these critics, the most desirable scheme should to “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21–22)[10] in order to protect the common law value of natural justice and the separation of power. In a recent case, Lord Steyn stated that the predominant legal position should be that it’s ‘vital that procedure and the merits should be kept strictly apart otherwise the merits may be judged unfairly.’[11] Although there are academic[12] and judicial[13] supports of this position, it would be unrealistic to deal with the procedural issue and substantial issue exclusively. The de facto tradition currently adopted in common law is that there should be a limited scope of the requirement of actual prejudice in the application of procedural unfairness. The real concern of the critics of the de factor approach is the uncertainty and vagueness as mentioned by L. G. Baxter[14] and Jerry L. Mashaw[15] and inconsistency as mentioned by Richard J. Pierce[16]. A more practical, if not the best, option is to ask how to eliminate these problems by a more predictable scheme of balancing approach.
First the causation analysis approach should be abandoned not only because this approach is one major source of the unpredictability of current law but also because the relevant issues under this approach can be solved by the balancing approach. And merging this approach into the balancing approach can further reduce the possibility of inconsistency of current law.
The next question is how to make the surviving balancing approach more consistent and predictable. A promising approach, unlike the traditional qualification analysis adopted by many courts, is the quantification of the interests needed to be balanced. As the coordinate axes shows bellow, the left side are the public interests and the right side are the personal interests and every specific interest would be assigned with a value according to its importance. In any particular case, the court needs to find out what personal and public interest are involved and make a simple summation: if the result is above 0, then actual prejudice should not be required and strict procedural fairness should be followed. Otherwise, the actual prejudice should be required.
A tentative table of quantification of different interests
Inspired by the CJCA in UK, legislation is also another option to eliminate the problems mentioned above. A full list of factors and applicable categories of cases requiring the proof of actual prejudice or not requiring the proof of actual prejudice would be a substantial move. But this task would less likely be done by court, which at most could provide a non-exhaustive list of factors as guiding elements, like mentioned in Stock Exchange of Hong Kong Ltd. v. New World Development Co. Ltd.[17] Therefore, the future law reform of Hong Kong on this issue should deal both with the list of the factors and categories of cases to provide a more explicit guiding for applicant of judicial review and liberate the court from the backward inference under which deducing the justification for the presumed conclusion.
D. Conclusion
It is no doubt that balancing approach is still a irreplaceable approach to decide the extent the actual prejudice required when dealing with the issue of procedural fairness, while it is still get bogged down in complicated balancing or compromise of various interests and values. However, most of the rules in the world of human being are the outcome of compromises, which is both art and mathematics. The previous cases law focused more on its art side and it would be more inspiring if future court can devote some of their endeavor on the more mathematic quantification of the compromise to make the balancing approach more predictable, certain and maneuverable.
[1] Richard Posner, ‘An Economic Approach to Legal Procedure and Judicial Administration’ (1973) 2 The Journal of Legal Studies 399.
[2] Richard J. Pierce, Jr., Administrative Law Treatise Volume II, 4th Edn, Aspen Law & Business 2002,564.
[3] ibid 577.
[4] R v Inland Revenue Commissioners, ex parte Federation of Self-Employed and Small Businesses [1982] AC 617, 643.
[5] It is a mountain pass, between Hindu Kush range and Sulaiman Mountains, connecting India and outside world. In the history, Kushan, Persis, Greeks, Turks and Mongols successfully invaded into India via Khyber Pass.
[6] [1964] AC 40.
[7] L. G. Baxter, ‘Fairness and Natural Justice in English and South African Law – Part I’ (1979) 96 The South African Law Journal, 607,628-629.
[8] Jerry L. Mashaw, ‘The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value’ (1979) 44 The University of Chicago Law Review 28.
[9] 424 U.S. 319 (1976).
[10] The Bible, Authorized Version, The British & Foreign Bible Society 1957, 30.
[11] R v Secretary of State for the Home Department ex parte Amin [2006] UKHL 51, [2007] 1 AC 619.
[12] L. G. Baxter, ‘Fairness and Natural Justice in English and South African Law – Part I’ (1979) 96 The South African Law Journal, 607, 632.
[13] R v Secretary of State for the Home Department ex parte Amin [2006] UKHL 51, [2007] 1 AC 619.
[14] L. G. Baxter, ‘Fairness and Natural Justice in English and South African Law – Part I’ (1979) 96 The South African Law Journal, 607, 628-34.
[15] Jerry L. Mashaw, ‘The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value’ (1979) 44 The University of Chicago Law Review 28, 49.
[16] Richard J. Pierce, Jr., Administrative Law Treatise Volume II, 4th Edn, Aspen Law & Business 2002,646.
[17] [2006] HKCFA 44, (2006) 9 HKCFAR 234.