Why fair procedures always make a difference

Section 31(2A) of the 'Senior Courts Act 1981' (as inserted by the 'Criminal Justice and Courts Act 2015') requires judges to refuse relief in judicial review of administrative decisions if it is ‘highly likely’ that the conduct complained of did not make a significant difference...

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Bibliographic Details
Published in:Modern law review 2020-11, Vol.83 (6), p.1221-1245
Main Author: Crummey, Conor
Format: Article
Language:English
Subjects:
Administrative law
Courts
Criminal justice
Fairness
Governance
Interpretation and construction
Judges & magistrates
Judicial review of administrative acts
Judicial reviews
Jurisprudence
Justification
Law
Morality
Political science
Procedural justice
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Summary:Section 31(2A) of the 'Senior Courts Act 1981' (as inserted by the 'Criminal Justice and Courts Act 2015') requires judges to refuse relief in judicial review of administrative decisions if it is ‘highly likely’ that the conduct complained of did not make a significant difference to the outcome of the decision. The strongest justification for this ‘Makes No Difference’ principle is provided by a ‘narrow instrumental view’ of fair procedures, according to which their value lies only in their producing the correct outcome. This conception of procedural fairness, however, is impoverished and flawed as a matter of political morality. Fair procedures reflect a conception of citizens as participants in their own governance and play an important communicative role in democratic legal orders. Inasmuch as it leaves no room for these aspects of the value of fair procedures, the Makes No Difference principle embodied in section 31(2A) is pro tanto unjust.
ISSN:0026-7961
1468-2230
DOI:10.1111/1468-2230.12556