“Fairness” In English and Zambian Administrative Law
By Elias Munshya, LLB, LLM, MBA, M.Div.
Administrative law is that branch of law that governs the scope and activities of government agencies. Government agencies are daily making important decisions that affect Zambian citizens. However, in the discharge of their functions administrative bodies must act with “fairness”. Together with the right to an unbiased judge, the right “to a fair trial” forms part of the elements that constitute the common law rules of natural justice. These rules are a pinnacle of both Zambian and English law. In the Council of Civil Service Unions v Minister for the Civil Service  UKHL 6 case, it is Lord Scarman who stated that there was an implied duty of fairness attached to all administrative acts. There is an expectation by anyone who is subject of an administrative tribunal to have a fair hearing. Additionally, when it comes to judicial review, a person affected may challenge a decision on the ground of procedural impropriety if his or her right to a fair trial are abrogated.
In the context of England and Wales, fairness has been reinforced by both sections 2 and 3 of Human Rights Act 1998 (HRA), which places a demand upon the courts and all administrative bodies to so construe legislation, as much as is possible, in compliance with the European Convention of Human Rights (ECHR) and the rulings of its institutions. Specifically, Article 6 (1) of the ECHR states that a person is entitled to “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. These same guarantees are provided in the Zambian constitution.
Fairness, however, is not a clear-cut concept in administrative law because applying what is fair in one case might be unfair when applied in another. What is precise in all this, however, is the fact that fairness does depend upon the circumstances of the case and the nature of the tribunal. As such, while there is a settled principle of fairness in administrative law in England, Zambia and elsewhere, the application of this principle must be contextualized to specific cases if fairness is to be achieved.
In the case of R v Home Secretary, ex p Doody , Lord Mustill stated several principles relevant to the concept of fairness in administrative law. First, the standards of fairness in administrative law are not immutable. They can change with time and change of circumstances. Le Suer, Herberg & English (1999) state “fairness is a flexible concept”. Second, according to Lord Mustill “principles of fairness cannot be applied by rote identically in every situation.” Context is important. Third, Lord Mustill opined that a person who is going to be adversely affected by an administrative decision must be given the opportunity to be heard either before the case is heard or after or both. This third principle complies with the 1915 ruling in Local Government Board v Arlidge, in which the House of Lords held that, there is “a minimum requirement that a party to a dispute should be given an adequate opportunity to present his side of the argument.” Fourthly, according to Lord Mustill, for a person to make a worthwhile presentation of his case, he must be given sufficient substance of the case against him. These principles, taken together with ECHR jurisprudence, would help in the discussion of the relevant cases in which fairness has been the subject matter. Some of these cases are explained below.
English courts have held that a violation of natural justice principles including the principle of fairness would not be acceptable. In R v Board of Visitors of Hull Prison, ex p St Germain, the court ruled that the prisoner’s right to fairness had been breached by an administrative agency’s reliance on hearsay evidence without giving the prisoner the opportunity to respond to that evidence. As in this case then the court saw that in those instances where the person’s liberty is at stake, the principles of fairness should be strictly followed. In the case of R v Barnsley Metropolitan Borough Council, ex parte Hook (1976), it was held that the rules of fairness had been breached since the decision was excessive and the trial violated the fairness principle. In R v Army Board of the Defense Council ex p Anderson, the administrative agency had breached the rules of fairness since it had not provided Anderson with copies of the written evidence to enable him to comment and reasonably react to the accusations.
However, notwithstanding the court cases mentioned in the paragraph above, the courts have been able to vary the demand for fairness. The courts to vary the demand for principles of “fairness” have used national security considerations. In the cases of R v Home Secretary, ex p Hosenball  and in the case of R v Home Secretary, ex p Cheblak , national security considerations were used to dispense with the stricter need for natural justice. Additionally, in the case of Secretary of State for the Home Department v. AF (2009), the Court of Appeal was willing to allow for the national security consideration in varying the application of the principle of fairness in administrative law, but nevertheless called upon the trial judge to allow the special advocates to have access to the information against the appellants. Here the court was attempting to balance the need for natural justice on one hand and national security considerations on the other.
Courts have varied what constitutes a fair hearing if the subject matter being adjudicated involves the welfare of children. As such, in the case of Re K (infants) , a case involving infants, the courts varied the elements of fairness by not availing all the facts to all the parties of the case. Additionally, in the cases of R (West) v Parole Board  and R (Roberts) v Parole Board , the House of Lords held that in some circumstances the general principles of fairness could be overlooked. These cases involved some prisoners who demanded that the information used in arriving at decisions that adversely affected them should be disclosed to them. In R v Commissioner for Racial Equality, ex p Cottrell & Rothon, it was held that even if cross-examination was not permitted and witnesses did not attend, there was no breach of the rules of fairness. Again the principle of fairness was not followed in this case.
In view of the case law, the present state of administrative law is that fairness still remains an integral part of the justice system. Administrative bodies may deviate from the fairness principle, if it would be in the interest of justice to do so. Even then, parties affected by the administrative body’s decision should be given sufficient information and opportunity to offer their side of the story. This is important for the development of Zambia’s constitutional and administrative law development.
Munshya, E (2015). Fairness In English and Zambian Administrative Law. Elias Munshya Blog (www.eliasmunshya.org) (Sep 3, 2015)