Natural Justice and Disciplinary Cases in Britain and France
| Author | MARGHERITA RENDEL |
| DOI | http://doi.org/10.1111/j.1467-9299.1980.tb00389.x |
| Published date | 01 March 1980 |
| Date | 01 March 1980 |
Natural Justice and Disciplinary Cases
in Britain and France
MARGHERITA RENDEL
Dr. Rendel
is
Research Lecturer in Human Rights and Education at the Institute
of
Education, University
of
London.
Natural justice is obviously desirable for its own sake. What English
person could possibly be opposed to ‘fair play in action’? But natural
justice is often seen as imposing restrictions on the freedom of action
of
administrative bodies, as imposing limitations on their powers to carry
out their functions, as a necessary evil from the administrators’ point of
view. Wade, justifying these limitations, argues that
‘the rules of natural justice restrict the freedom of administrative
action, their observance costs a certain amount of time and money. But
time and money are likely to be well spent if they reduce friction in the
machinery of government; and it is because they are essentially rules
for
upholding fairness and
so
reducing grievances that the rules of
natural justice can be said to promote efficiency rather than impede it’.’
The argument of this article is first that natural justice should not be
seen as a necessary evil or as a fetter, however justifiable, on administra-
tive action, but as
esseniiaf
for good and efficient administration in both
public and private sectors to ensure fairness and to avoid or reduce
grievances of staff and clients. Dealing with grievances takes time, energy,
resources and often money. Effective rules and procedures of natural
justice ostensibly provide means
of
dealing with
a
problem after it has
arisen, but it is part of my argument that such procedures cast their
shadow ahead and thereby help to prevent problems from arising. Thus
the recommendation in the
ACAS
Code of practice2
of
written warnings
before disciplinary action is taken can, if complied with, forestall mis-
understandings, injustices and recriminations. Furthermore, where formal
means of complaint are lacking, complaints are not made, not because
there are no grounds for complaint, but because complaints cannot be
brought. As a consequence abuses may not be checked, and one means of
controlling the action of subordinates is lost to management. In the
67
PUBLIC
ADMINISTRATION
nineteenth century, administrative lawyers in France such as Aucoc and
Laferrike stressed this aspect of the right to challenge administrative
decisions. Thus:
‘Parliament has attached great importance to the possibility of the
central government becoming aware of the overzealousness of its
servants which could arouse discontent among the people. In a struggle
between a private interest and the public interest, the consequences of
an injustice or what might be regarded as such cannot be measured by
the size
of
the sum in di~pute’.~
and referring to the
184Os,
‘The
recours pour ex& de pouvoir,
... far from being penalized as
under the Restoration, by disciplinary sanctions against those bringing
rash cases, was encouraged by a more liberal case-law, and it was often
used to resolve disputes concerning the powers of the authorities and
the correctness of their
action^'.^
The second part
of
my argument is that the rules
of
natural justice are
too narrowly formulated and applied in Britain. I shall be chiefly concerned
with the application of the rules of natural justice to disciplinary cases.
Disciplinary cases are
of
particular interest because they pose most sharply
the conflict between an individual’s livelihood and life-chances on the one
hand and managerial prerogative and the rights
of
those claimed to be
in
loco parentis
on the other. In the student cases, which I shall discuss,
the status of
in loco parentis
accorded to college and university authorities
is scarcely distinguishable in practice from one
of
management in employ-
ment cases. I shall compare these cases with some of the classic French
cases in administrative law. Then I shall look at some
of
the consequences
of the narrowness of English rules. ‘Narrowness’ will refer to the content
of the rules, to the persons to whom and the circumstances and way in
which they are applied. A special reason for examining the principles of
French administrative law is its influence on Common Market law, the
latter now binding on the United Kingdom also.
THE ENGLISH RULES
OF
NATURAL JUSTICE
In England the rules
of
natural justice are expressed as:
nemo iudex in
causa
sua
and
audi alteram partem.’
The case-law is voluminous and con-
fused. The second
of
the two maxims has attracted the greater part of it.
Sometimes a third rule is added: the right to know the allegations made.6
These three maxims by themselves are exposed and therefore vulnerable.
They need the support
of
more detailed rules elaborating them and of wider
fundamental
constitutional
principles. Both maxims have been subverted
for reasons
fo
administrative convenience and practicality, and the right to
a hearing has been denied a content. Finally, the rules of natural justice
are denuded of efficacy because the courts refuse to enforce them by
exercising their discretion. As a result of the lack of fundamental con-
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