I saw an interesting piece in the Evening Standard yesterday as Tamsyn and I were making our way back from running a training course on Making Consultation Meaningful for Southend-on-Sea Borough Council. It read that plans for a third runway at Heathrow breach natural justice because the consultation process was unfair, the High Court hears.
A similar article has been posted on the BBC news website http://news.bbc.co.uk/go/rss/-/1/hi/uk/8528708.stm which goes on to explain that local councils, residents and green groups want a judge to quash the expansion plans for the London airport. According to the post Nigel Pleming QC, appearing for the coalition, told the court the government had failed to provide adequate reasons for its decision. The Department for Transport said it stood by its decision, made last year. Mr Pleming said: “There was a consultation process here, but the decision made was fundamentally different from the subject matter of the consultation” and “that difference was such as to make it conspicuously unfair.”
This made me think more about the relationship between natural law and consultation. So I had a look on wikipedia which provides the following information about natural law.
According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. The assertion in the United States’ Declaration of Independence, “We hold these truths to be self-evident,” expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and civil law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.
Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:
- A Right to Advanced Warning. Contractual obligations depriving individuals of their Rights cannot be imposed retrospectively.
- A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
- A person making a decision should declare any personal interest they may have in the proceedings.
- A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome. This is expressed in the Latin maxim, nemo iudex in causa sua: “no man is permitted to be judge in his own cause”.
- Proceedings should be conducted so they are fair to all the parties – expressed in the Latin maxim audi alteram partem: “let the other side be heard”.
- Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
- A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
- Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.
Notably, natural justice is binding upon both public and private entities, such as trade unions. In contrast, the U.S. concept of due process is strictly limited to decisions made by governmental entities, although the U.S. state of California has developed a doctrine of fair procedure which is binding upon certain types of private entities in that state.
It immediately struck me that many of the principles of procedural fairness and guidelines summarised above are similar to those for making consultation meaningful and their spirit is echoed in the Consultation Institute’s charter and in the governments own Code of Practice on consultation http://www.berr.gov.uk/whatwedo/bre/consultation-guidance/page44420.html.
To me this strong correlation between good consultation and natural justice goes a long way to explaining why consultation has become such an important part of policy making and decision making more generally. It is because people have a natural right to be heard, they expect what they say to be considered properly and that the decision should be influenced by this process. Good consultation, grounded in historical principles of natural justice, that follows the Consultation Institute’s charter can deliver this. It can ensure that “justice” (in its broadest sense) is seen to be done, that people are satisfied “justice” has been done and they will therefore continue to place faith in the decision makers.
The opposite is of course true of poor consultation then. Consultation that contradicts the principles of natural justice will mean that people lose faith in the decision makers, they will not be satisfied that “justice” has been done.
Of course you can’t please all of the people all of the time. There will always be winners and losers in decisions like the Heathrow extension. But you can ensure that through consultation people feel that even if the decision does not go their way that the process has been fair, and just. But only if we make consultation meaningful, by following the laws of natural justice.
Some food for thought