“Having weighed all the factors which are relevant to the issue, I have reached the conclusion that the Defendant was under no duty to act fairly towards the Claimant either in the course of carrying out its assessment of SL under section 47 or before making any decision consequent upon that assessment.”
“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
“The Secretary of State wishes to encourage such consultation, so that placing authorities can inform host authorities of action proposed to be taken, host authorities can provide the benefit of their local knowledge as part of the decision-making process, and both can work together to ensure that any provision and placement is suitable.”
“. . . it is with the local planning authority that legal responsibility for fair public administration rests and [the authority’s] task, principally through its officers, was to ensure that neither party acquired an inside track, whether by spurious reliance on commercial confidentiality or through a special negotiating relationship.”
“I am aware of no authority for the proposition that, where Parliament has prescribed the nature and extent of consultation, a wider duty of consultation may exist at common law (in the absence of a clear promise or an established practice of wider consultation by the decision-maker).”
“These are difficult questions. They raise matters of public interest. Where Parliament has decided, the courts should not enter the arena and impose a different duty of consultation.”
“All that said the statutory language certainly does not assist Mr Clayton's argument. Parliament has specified circumstances in which an authority exercising its power under section 47(1) must notify another authority of the exercise of the power and permit the other authority to participate in an assessment (subsection (3)); just as importantly, it has reserved to the Secretary of State a power to make directions which can be used to impose upon a local authority a duty to notify or consult with other local authorities in appropriate circumstances. In my judgment, the express provisions contained within sub-sections (3) and (4) are powerful indicators that the courts should be slow to accept the existence of the duties for which the Claimant contends.”
“But the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice, . .”
“I incline to the conclusion that the discharge of the regulation 12 obligation would be sufficient to meet the requirements of fairness for the following reasons. First, the fact that the Secretary of State has prescribed the scope of its obligation to consult is a relevant factor, although I accept that it is by no means decisive, since ultimately whether a process is fair is a matter for the courts to decide. Secondly, the CAA is a statutory regulator in the field of economic regulation in the general interest of all those who use Gatwick airport. The need to give the right to affected or interested parties to make full representations is less pressing in this context than it is in other contexts where the decision affects the fundamental rights of individuals such as, for example, the liberty of the subject, the right to receive publicly-funded accommodation, health treatment or education or a benefit (such as a licence) which affects a person's livelihood. Thirdly, the CAA is not acting as a judicial or quasi-judicial body adjudicating between competing claims. It is not its role to balance the airlines' interests against those of BAA. Rather, it must carry out its own investigation and make an objective assessment of the level of charges which, in its judgment, is most appropriate to achieve the statutory objectives. It conducts its own investigations with its specialist staff and is assisted by the work done by the CC [Competition Commission] and has to act in the manner which it considers is best calculated to achieve the goals stated in section 39(2) of the 1986 Act. Fourthly, in the light of the foregoing, the requirements of fairness are satisfied by giving all affected or interested parties the opportunity to make written representations on the conditions or modifications that the CAA intends to make (after conducting its own investigations and taking account of a CC report) within 30 days of publication of the proposals.”
“In my judgment, the fact that, when conferring on the Lord Chancellor the power to prescribe court fees, Parliament decided whom he should consult before doing so militates strongly against the idea that there should co-exist a common law duty to consult more widely (in the absence of a clear promise by the Lord Chancellor that there would be wider consultation and in the absence of any clear established practice of wider consultation). Parliament is to be presumed to have considered that the degree of consultation specified in section 92 of the 2003 Act was sufficient.”