natural justice

Topics: Common law, Court, Law Pages: 28 (12239 words) Published: April 21, 2014
Natural justice
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly". The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly. The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.


The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v. Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising. Natural justice is a term of art that denotes specific procedural rights in the English legal system[1] and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.[2] Although natural justice has an impressive ancestry[3] and is said to express the close relationship between the common law and moral principles,[4] the use of the term today is not to be confused with the "natural law" of the Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century.[5] Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia[6] and the United Kingdom[7] it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing,[8] which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side").[9] The requirements of natural justice or a duty to act fairly depend on the context.[10] In Baker v. Canada (Minister of Citizenship and Immigration) (1999),[11] the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker.[12] Earlier, in Knight v. Indian Head School Division No. 19 (1990),[13] the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Furthermore, preliminary decisions will generally not trigger the duty to act fairly, but...
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