Crummey, Conor (2020) Why Fair Procedures Always Make a Difference. The Modern Law Review, 83 (6). pp. 1221-1245. ISSN 0026-7961

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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.

Item Type:	Article
Keywords:	why fair; procedures; difference;
Academic Unit:	Faculty of Social Sciences > Law
Item ID:	18040
Identification Number:	https://doi.org/10.1111/1468-2230.12556
Depositing User:	Conor Crummey
Date Deposited:	16 Jan 2024 14:43
Journal or Publication Title:	The Modern Law Review
Publisher:	Wiley
Refereed:	Yes
URI:	Publisher
Use Licence:	This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here

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