ABSTRACT
Irrespective of the labelling attached to the body in question, there exists a duty to ‘act fairly’. The principles of fairness have not been given either universal or consistent interpretations. For example, in McInnes v Onslow Fane (1978), Megarry VC stated:
... the further the situation is away from anything that resembles a judicial or quasijudicial decision, and the further the question is removed from what may reasonably be called a justiciable question, the more appropriate it is to reject an expression which includes the word justice and to use instead terms such as ‘fairness’ or the ‘duty to act fairly’. [p 1530]
In Council of Civil Service Unions v Minister for the Civil Service (1985), the House of Lords once again turned to the apparent differences in the concepts, Lord Roskill seemingly rejecting the phrase ‘natural justice’ in favour of the duty to ‘act fairly’. Lord Roskill asserted that:
The phrase [natural justice] might now be allowed to find a permanent resting place and be better replaced by speaking of a duty to act fairly. But the latter phrase must not in its turn be misunderstood or misused. It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case as indeed the decided cases since 1950 consistently show. Many features will come into place including the nature of the decision and the relationship of those involved on either side before the decision was taken. [p 414]
The principle of fairness can be clearly seen in the case of Re HK (An Infant) (1967), wherein it was held that, whilst immigration officers were not obliged to hold a hearing before deciding an immigrant’s status, they were nevertheless under an obligation to act fairly. The duty to give a hearing will be higher if a ‘legitimate expectation’ has been created in the mind of the complainant by the public body concerned.59
