[lit-ideas] Re: Grice v Grice
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 17 Dec 2015 13:18:16 +0000 (UTC)
We have been discussing various aspects of law in relationto an underlying
issue of whether law is best understood in terms of‘problem-solving’ [PS] or
‘conceptual analysis’ [CA]. What follows is a passage, from a very senior
British judge,where “conceptually” is used, in the phrase “conceptually
distinct”:- “The common law rules of natural justice or proceduralfairness are
twofold. First, the person affected has the right to prior noticeand an
effective opportunity to make representations before a decision is made.Second,
the person affected has the right to an unbiased tribunal. These
tworequirements are conceptually distinct.”(per Dyson LJ, AMEC Capital Projects
Limited vWhitefriars City Estates Limited [2005 1AER 723]). Does this use of
“conceptually distinct” indicate that CA,and not PS, is at work here? Not
really, and some clear thinking shows that the pointabout the “two
requirements” being “distinct” could be expressed without use ofthe add-on
“conceptually”, that “conceptually” adds nothing important, that thesource of
the distinction is one of substance not of ‘concepts’, and thedistinction is
really based on two distinct or distinguishable sets of problemsthat might
affect “procedural fairness”. We start with the idea of a decision-making body
[DMB] andan applicant with a case [AwC]. The DMB enters into a relationship
with AwC inorder to reach a decision [D]. So we have: “(DMB < - > AwC)
-> D”. This means we have a two-way or bi-lateral relationship between DMBand
AwB, giving rise to a D. As a matter of analysis we can treat this
two-wayrelationship as a compound “< - >” or we can break it down into a “< -”
and a “- >”. If broken down into a “< - ” and a “- >” we have twodistinct
aspects to the two-way relationship – the relationship ‘in thedirection’ from
AwC to DMB and the relationship ‘in the direction’ DMB to AwC. This may not be
a matter of CA but simply of ‘analysis’, andit may be an analysis of a problem
and not of concepts. That is, we may claimthe concept “< - >” breaks down,
using CA, to the concept “< - ” andthe concept “- >”; but we may equally claim
that “< - >” is a solutionto the problem of how to schematise the relationship
between DMB and AwB [i.e. as two-way, not one-way], and thatthis problem can
them be broken into two subsets of problems of a type “< -” and of a type “-
”. We may ask is there any consideration which favours eitherthe CA account
or the PS account? That is, is there anything that favoursunderstanding the
above in terms of CA (breaking down “< - >” to theconcept “< - ” and the
concept “- >”) or in terms of PS (which takes asrelatively trivial that “< - >”
may be broken down into two aspects “<- ” and “- >”, but sees “< - >” as a
better characterisation of theproblem-situation because theproblem-situation is
two-way and not one-way)?
I suggest there is: a one-way characterisation of therelationship between DMB
and AwC could not be adequate (in reality) to providenecessary conditions for
procedural fairness. This is obvious enough: (a) nomatter how unbiased the DMB,
this cannot give the AwC ‘procedural fairness’ ifthere are not adequate
procedures in place that enable the AwC to put theircase before the DMB; (b) no
matter how conducive procedures are to enable the AwCto put their case before
the DMB, these procedures cannot give the AwC‘procedural fairness’ if the DMB
is so biased that the case may as well neverbe put. These (a) and (b) are not
products of CA but of a PS analysis. So: the fact the two-way relationship can
be broken downinto its two ‘one-way’ aspects is comparatively trivial and
unimportant, whatis not trivial – what is very important – is that ‘procedural
fairness’ mustencompass both aspects. Then, why bother to distinguish the two
aspects at all?Because it helps clarify what kind of problem is being raised.
If AwC complainsor appeals on the basis of lack of ‘procedural fairness’ it is
helpful to beclear about the specifics of the problem, and clarifying the
specificsunavoidably raises issues of whether the specifics fall more in the
direction‘DMB “->” AwC’ [as might ‘bias’] or in the direction ‘DMB “<-” AwC’
[asmight the scope for AwC to put their case]. Drawing this distinction is
alsonot an exercise in CA but in PS because we are making a judgment about
whatkind of problem is raised. These judgments are not derived from CA but
fromassessments of underlying realities. Example: a DMB refuses to
considerdocuments submitted by the AwC. Is this a failure in direction ‘DMB
“->”AwC’ or direction ‘DMB “<-” AwC’? It may depend. If the DMB
refusesdocuments from the AwC while accepting other comparable documents, this
maylook like ‘bias’ and so fall in direction ‘DMB “->” AwC’. But if the
DMBrefuses documents ‘across-the board’, this may look like a failure to
allowadequate opportunity for AwC to get their case across and so a failure in
thedirection ‘DMB “<-” AwC’. Now we move on to a further point as to why CA is
notimportant here. Practically speaking, from a PS pov, we are looking
atsolutions to problems. In truth, it really does not much matter whether
weclassify ‘bias’ as going in the direction ‘DMB “->” AwC’ or in the
direction‘DMB “<-” AwC’ – what matters is that we have rules to address actual
and potentialbias. [Ditto for the direction in which we class ‘refusal to
considerdocuments’]. Clearly there is a sense in which a DMB being biased
against AwCis at once a bias in ‘->’ direction but also a bias that works
against the‘< -’ direction. The point of ‘direction’ becomes important in terms
ofdeciding where responsibility lies: bias on the part of a DMB is
itsresponsibility but documents ‘lost in the system’ may not be – and so bias
isassimilated to direction ‘DMB “->” AwC’ whereas documents ‘lost in thesystem’
are assimilated to direction ‘DMB “<-” AwC’. This allocation of responsibility
is again not derived from mereconcepts but from judgments about underlying
realities, and it may haveimportant practical effects: where a decision is set
aside on appeal because ofbias on the part of a DMB, the case should not be
reheard by any members ofthat DMB; whereas if a decision is set aside because
documents were ‘lost inthe machine’ [no fault of the DMB] the same members of
that DMB may participatein the rehearing. Likewise failures by the
representative of the AwC are notthe responsibility of the DMB and so these
fall in the ‘DMB “<-” AwC’direction: in fact, they are viewed [generally] as
failures to be rectified bythe AwC suing their representative and not addressed
by the system allowing arehearing, and so they are generally deemed to be
failures that do not affect‘procedural fairness’. But there is at least one
recognised exception wherefailures by representatives will be deemed to fall
within ‘proceduralunfairness’, and recognition of this exception shows the
courts are notfollowing some hidebound CA but adopting a PS approach
through-out. Thatexception is asylum cases. The reason is simple. In most
cases, monetarycompensation from suing a representative is adequate recompense
for how theirfailures may have affected the outcome of a case, but in asylum
cases it is not:“it is no consolation to tell a person that she can sue her
solicitor for hismistake if the mistake is about to lead to her removal from
this country; and, a fortiori, if the removal is to acondition of persecution.”
(observation of Lord Denning endorsed by the Courtof Appeal in BR (Iran) v SS
HomeDepartment [2007 1 WLR 2278]). This shows that courts decide what countsas
‘procedural fairness’ not in general terms of some CA but in terms of
thespecifics of problem-situations: in an asylum problem-situation failures by
arepresentative may give rise to ‘procedural unfairness’ where they would
notgive rise to any ‘procedural unfairness’ in other kinds of case. PS can
explainthis where CA cannot. What we find here is not a score-draw between CA
and PS. WheneverCA might appear to explain the law there is always an
alternative and better explanation in terms of PS.In the above, we have seen
that CA cannot really explain why the concept of“procedural unfairness” differs
substantively in asylum cases, whereas a PSapproach can easily and accurately
explain this. CA cannot really explain whycertain kinds of “procedural
unfairness” are held to be the responsibility ofthe DMB (e.g. bias) whereas
othersare not (loss of documents in the system), or why this difference
inresponsibility may have differing practical consequences (e.g. as to whether
members of the DMB can participate in a rehearing). We started with a passage
that refers to “two requirements”as “conceptually distinct” and find that
understanding this distinction is nota matter of mere concepts but of
understanding practicalities in terms ofrelevant problem-situations. DL
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