Why Fair Procedures Always Make a Difference |
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| Authors: | Conor Crummey |
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| Affiliation: | 1. Lecturer in Public Law at Queen Mary University of London, School of Law;2. 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. |
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| Abstract: | 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 significant difference to the outcome of the decision. The strongest justification for this ‘Makes No Difference’ 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 flawed as a matter of political morality. Fair procedures reflect 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 Difference principle embodied in section 31(2A) is pro tanto unjust. |
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