Why Fair Procedures Always Make a Difference
| Date | 01 November 2020 |
| Author | Conor Crummey |
| DOI | http://doi.org/10.1111/1468-2230.12556 |
| Published date | 01 November 2020 |
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Modern Law Review
DOI:10.1111/1468-2230.12556
Why Fair Procedures Always Make a Dierence
Conor Crummey∗
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 signicant dierence to the out-
come of the decision. The strongest justication for this ‘Makes No Dierence’ 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 awed as a matter of political morality.Fair procedures reect 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 Dierence principle embodied in section 31(2A) is pro tanto unjust.
INTRODUCTION
The last decade has seen a host of governmental attempts to reduce the capacity
of citizens to access judicial review of administrative decisions. Legal aid fund-
ing has been consistently cut,1adverse costs orders bar in practice the majority
of potential claims from reaching a courtroom,2and prohibitive costs are at-
tached to various lower court and tribunal proceedings.3Among these eorts
to clamp down on judicial review we can count section 84 of the Criminal Jus-
tice and Courts Act 2015. The provision introduced the requirement that High
Court judges refuse relief in applications for judicial review (or refuse permis-
sion, as the case may be) in cases where an administrative decision-maker has
acted unlawfully, where it is thought that the conduct complained of made no
signicant dierence to the outcome of the decision.4Suppose, for example,
that a local authority grants planning per mission for a new shopping mall in
∗Lecturer in Public Law at Queen Mary University of London, School of Law; PhD Candidate at
UCL Laws. I would like to thank George Letsas for his feedback and advice on various versions
of this paper. I am also extremely grateful for generous feedback that I received from Joe Atkinson,
Neve Gordon, Finn Keyes, Dimitrios Kyritsis,Daniella Lock,Ronan McCrea,Simon Palmer,and Lea
Raible.I would also like to thank the two anonymous reviewers for their helpful comments.
1 Amnesty Inter national, Cuts That Hurt: The Impact of Legal Aid Costs in England on Access to Justice
(2016) at https://www.amnesty.org.uk/les/aiuk_legal_aid_report.pdf. Unless otherwise stated,
all URLs were last accessed 22 July 2019.
2 T.Hickman, ‘Public Law’s Disgrace’ UK Constitutional Law Association Blog 9 February 2017 at
https://ukconstitutionallaw.org/2017/02/09/tom-hickman-public- laws-disgrace/; T.Hickman,
‘Public Law’s Disgrace Part 2’ UK Constitutional Law Association Blog 26 October 2017 at https://
ukconstitutionallaw.org/2017/10/26/tom-hickman-public- laws-disgrace-part- 2/.
3R (UNISON) vLord Chancellor [2017] UKSC 51.
4 Criminal Justice and Cour ts Act 2015, s 84.
© 2020 The Author.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1221–1245
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Why Fair Procedures Always Make a Dierence
a residential area, without consulting local residents. The residents then seek
judicial review of this decision,on the g rounds that the failure to consult them
made the decision unlawful.If it seems to the judge ‘highly likely’ that planning
permission would have been granted even if the residents had been consulted,
then the judge must refuse relief, notwithstanding the illegality of the decision.
Call this requirement the ‘Makes No Dierence’pr inciple.
In this paper I analyse whether any compelling justication can be oered
for the Makes No Dierence principle. I argue that even read in its most
philosophically coherent light, the pr inciple rests on a conception of the value
of fair procedures that is deeply problematic as a matter of political moral-
ity. The strongest justication for the principle is based on a ‘narrow instru-
mental view’ of fair procedures. According to this view, fair procedures are not
valuable in and of themselves. Rather, they are valuable because they further
the specic instrumental aim of producing the right outcome in individual
cases.5
I argue that this theoretical underpinning is awed.The nar row instrumental
view elides two other important ways in which fair procedures are valuable.
First, properly understood, fair procedures express a conception of citizens as
responsible agents with a right to participate in the creation and enforcement of
law.This aspect of procedural justice is well understood in the relevant literature.
Secondly, I argue that democratic legal systems play an important communicative
role in expressing an ideal of equal citizenship, and that fair procedures are
essential to law playing this role.
Taken together,these two grounds of objection demonstrate that the Makes
No Dierence principle is pro tanto unjust, because the nar row instrumental
view that underpins it is wrong.It may be that further arguments can be g iven as
to why the Makes No Dierence principle is all things considered just.Absent this
further justication, however,the on-going development of procedural fair ness
as a head of judicial review should place these further aspects of the value of
fair procedures at its heart.
Before proceeding,it might be useful to set out upfront what kinds of ‘unfair’
procedure I am interested in. My analysis of the Makes No Dierence princi-
ple turns on arguments about why fair procedures are valuable. It would beg
the question to say that a procedure counts as ‘unfair’ if it fails to embody the
value that I identify. I will stipulate from the outset, then, that I take an ‘un-
fair procedure’ to mean unfair in any sense currently recognised in public and
administrative law. A procedure might be unfair if, for example, the decision
makers failed to consult aected parties, if the decision maker did not give rea-
sons for their decisions,if a decision maker was biased, or if the sort of procedure
used is deemed to have been inadequate to reach the sort of decision that had
to be made, such as when a parole board reaches a decision without granting a
prisoner an oral parole hearing. The account that I set out in this article seeks
5 Throughout this paper, I am agnostic about what is meant by the ‘right outcome’ or ‘correct
outcome’.I use these ter ms rather than the narrower‘fair outcome’ since,presumably,values other
than fairness, such as justice,will play a role in determining the all things considered rightness of
an outcome.
1222 © 2020 The Author.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1221–1245
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