Procedural Fairness v Article 6 ECHR

Introduction

·        Procedural fairness is rooted in common law natural justice.

·        Art 6 ECHR guarantees fair & public hearing.

·        Q? Has Art 6 meaningfully enhanced protection?

Common Law Procedural Fairness

·        Highly flexible & context sensitive.

·        Core requirements:

o   Hearing (oral where necessary)

o   Representation (sometimes)

o   Reasons

o   Absence of bias.

·        Ridge v Baldwin

o   Dismissal without hearing unlawful.

o   Establishes fairness applies even without express statutory requirement.

·        Lloyd v McMahon

o   Fairness depends on context & consequences.

·        Strength: Adaptability.

·        Weakness: Unpredictability.

Article 6 ECHR

·        Applies where:

o   Civil Rights & Obligations.

o   Or criminal charge.

·        Key guarantees:

o   Independent & impartial tribunal.

o   Public hearing.

o   Equality of arms.

o   Reasoned decisions.

·        Begum v Tower Hamlets

o   Article 6 did not apply to housing allocation policy.

o   Demonstrates limited scope.

Relationship between the two

·        UK courts often mirror Art 6 standards using common law.

·        Osborn v Parole Board

o   Supreme Court prioritised common law fairness over Art 6.

o   Lord Reed: Common law is primary, convention is a ‘backstop’

Evaluation

·        Art 6:

o   Adds clarity & structure.

o   But limited by scope.

·        Common law:

o   Broader reach.

o   Often provides equal or greater protection.

Conclusion

·        Art 6 has not revolutionised procedural fairness.

·        Common law remains dominant & sufficient.

·        Best protection comes from their interaction, not competition.