Lord Bridge identified that “the so -called rules of natural justice are not set in stone...”[1] This highlights the uncertainty surrounding this area of law and understandably how the principles attached to it 'are in some confusion[2] due to the substantial changes over time. The initial separation between judicial and administrative cases proved problematic as it came with the notion of not providing executive-related cases a rigorous decision-making procedure unless they were solely of a judicial nature.[3] The enablement of all case types to be granted a court-like procedure wouldn't be very efficient, bearing in mind the amount of time and money that it’ll cost. The concept of filtering judicial from executive cases may have been beneficial but it raised issues that needed addressing, such as how justice would be served for those whose cases fall under the administrative sector. Professor D J Galligan stated that, “whenever the state, through its officials, decides how people are to be treated, considerations of fair treatment arise…”[4] It’s the tension between administrative autonomy and legal certainty which has now shaped the concept of natural justice[5], by incorporating procedural fairness into governmental law as a means of balancing these competing issues. The Latin maxims 'Audi Alterem Partem' [6] and 'Nemo Iudex sua Causa’ [7] form the two distinct parts of natural justice. The main issue in Popeye's case is the revocation of his license by the Harbour Authority and the steps taken by them to reach their decision. To determine whether Popeye will succeed in his claim, the relative requirements of natural justice will be covered in turn whilst considering if the Harbour Authority’s decision-making process complied with them. The first question that must be asked is whether or not natural justice can be applied to Popeye's case and then if so, to what extent should he be granted procedural fairness?
In Cooper v.Wandsworth Board of Works[8] it was held that natural justice should be applicable in all situations, including administrative cases. This was later diluted in Errington v. Minister of Health[9] forming the basis of the traditional approach limiting the scope of natural justice to judicial cases alone. Two major flaws with this method were that it was artificial and also non-constructive.[10] Artificial in the sense that the piffling judicial matters such as driving offences would be granted a more stringent hearing procedure, whilst an individual who is about to lose their license for a business would not be offered the same rigorous procedure merely because it's an issue which falls under the controls of a public authority and not the state. Both situations are equally as important, as one is concerned with public safety whilst the other involves the loss of one's business and livelihood. Despite these flaws the old approach was still adapted in subsequent cases. (See: Nakkuda Ali v. Jayararatne [11], R v. Metropolitan Police Commissioner ex parte Parker[12]). Under this Errington [1935][13] method Popeye’s submission is likely to fail under natural justice as his case lacks judicial nature.
The leading case of Ridge v. Baldwin[14] became the 'turning point of judicial policy.'[15] It 'appeared decisively to reject the practical difference between judicial and executive judgement.'[16] Tucker LJ opined that, “…the requirements of natural justice must depend on the circumstance of the case, the nature of the inquiry…the subject matter that is being dealt with, and so forth…”[17] which is simply what was developed further in Ridge by taking into account the level of gravity and impact the decision would have on the person affected.[18] Natural justice applied in R v. Barnsley Metropolitan Borough Council ex parte Hook[19] eventhough it was an administrative case, as the license obtained by the applicant was required for him to make a living.
Lord Denning stated, “... I agree that he has to have the right of the market-holder to start with, but once he has it and has set up his stall there... it is not to be taken away except for just cause and only in accordance with... natural justice... A stall-holder counts on this right in order to enable him earn a living...”[20] Denning highlights the significance of owning a business or in this case a market-stall that is established to earn money, and therefore should not be withdrawn from the owner. This quote in relation to Popeye implies that his license should not have been revoked. It would hinder him from earning a living as his boat business was probably his main source of income. If the Harbour Authority chooses to take the license away from him then it must be by way of natural justice provisions and not “with immediate effect”. This suggests that the modern (Ridge) approach taken above in Barnsley [1976[21]] and also in the recent case of R.(on the application of Birmingham and Solihull Taxi Association[22] can similarly be applied to Popeye as the claimants in this case were also at risk of losing their business. If courts follow Ridge[23], the severity and aftermath the license revocation had on Popeye would be sole consideration, as opposed to merely disregarding his case as an executive matter.[24]
The concept of legitimate expectation[25] was first introduced in Schmidt v. Secretary of State for Home Affairs.[26] Legitimate expectation is closely linked to the modern approach as it acts as further protection for those whose interest and rights have been affected by decisions made by public bodies so Popeye may raise this principle to support his application on two grounds. Firstly, a legitimate expectation on the continuous provision of his boat license from the Harbour Authority can be expected as it had become a regular practice. As held by Lord Fraser, “…where a person claiming some benefit… has no legal right to it, he may have a legitimate expectation of receiving the benefit or privilege…such expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice…”[27] This notion was followed later in R v. North East Devon Health Authority[28] where the disabled claimant was promised a home for life. A comparable view was shown in R v. Inland Revenue Commissioners ex parte Unilever Plc. [1996][29] where it was held that procedural legitimate expectation can arise by way of regular practice, signifying that the courts may find it compulsory for the Harbour Authority to provide Popeye his license, if there’s reason to believe they’ve expressly promised him such provisions. The fact that Popeye was only granted a letter to contribute his side of the story can form the basis of his second ground for a legitimate expectation to an oral hearing, as in GCHQ[30] where the trade unions argued they had a legitimate expectation of being consulted before important changes were made to their terms of service. It’s reasonable for Popeye to legitimately expect Harbour Authority to grant him an oral hearing as part of their decision-making procedure as their investigator, Brutus, had said he’ll ‘no doubt’ be granted one as the Authority would want to speak to him ‘in due course’. The insertion of the phrase ‘no doubt’ gives the impression that oral hearings are usually permitted before final judgments are made. If a claimant expects that a particular procedure will be followed before certain action is taken, then the court will generally require the public body to adhere to such procedure as demonstrated by Attorney-General of Hong Kong v. Ng Yuen Shiu.[31] The Chinese immigrant here had a legitimate expectation to be heard relying on the announcement made by the Hong Kong government to have all Macau immigrants have their case ‘treated on its merits’ and be granted an interview before being deported.
If Popeye’s legitimate expectation claim fails the courts can consider the three factors established in Durayappah v. Fernando;[32] the status held by the applicant, the circumstances of intervention by the public body, and the potential sanctions that may be imposed. The courts are likely to decide that the Durayappah[33] factors are applicable to Popeye and that his case does warrant a hearing. A business owner should be granted a hearing before losing his company, as should a person who requires a license for a boat business be entitled to a sufficient hearing before being deprived of this benefit. Reverting back to Ridge[34], the applicant was granted a right to be heard as he was a Chief Constable (status held by applicant), whereas in the earlier case of Gaiman v. National Association for Mental Health[35] it was decided a hearing wasn’t needed as the decision didn’t affect the claimant’s livelihood or reputation. In the recent case of Shoesmith [2011][36] the authority’s process was held unlawful and concluded that the teacher accused deserved a fair hearing before being dismissed. The loss of Popeye’s license means he’s also lost his job, similarly highlighted in Shoesmith[37] as he won’t be able to continue his boat business. The courts would likely find that Popeye deserved to be heard before having his license revoked. The extent of his hearing would be determined whilst considering the sufficiency of the written representation requested from Popeye by the Harbour Authority. The Harbour Authority may defy Popeye’s submission by claiming that he was given the opportunity to be heard in form of his letter (written representation) and therefore they have complied with the provisions set under natural justice. The Harbour Authority’s argument may stand as an oral hearing is not always deemed necessary as shown in Glynn v Keele University[38] where the student who sunbathed nude was not granted a hearing before receiving a fine and being suspended. However, Popeye’s argument is not based on him being deprived of a hearing, but the fact that he was not permitted the chance to speak to a member of the Authority in person.
The Harbour Authority conduct a multi-stage procedure so their acceptance of Popeye’s letter at the initial investigatory stage may not amount to a suitable hearing, as there should have been another hearing, preferably an oral one before the final decision-making stage. This fact is shown clearly in Wiseman v. Borneman[39] where it was held that natural justice should apply to all stages of the procedure and that the right type of hearing should be given at the right stage.[40] (See: Lord Guest quote below.[41]) In accordance to what Lord Guest cited below, Brutus is the preliminary ‘tribunal’ investigating and making ‘recommendations’ to the rest of the authority members whilst Salty the Chairman and the Harbour Authority panel are the final decision makers. In other words Lord Guest’s quote suggests that if a mere written representation could be granted at the early stage, why couldn’t Harbour Authority conduct an oral hearing before the final stage? This form of hearing would be considered as more important as it is where the all-important decision is made so it’s procedurally fair that Popeye is heard at this juncture. However, the court may take into account Lloyd v. McMahon[42] where the auditor’s failure to offer an oral hearing was not held unfair as the final decision wouldn’t have changed. If the court feels Popeye’s representation, written or oral would have made no difference to his case, then it’s likely he doesn’t gain his license back from the authority. Another way the Harbour Authority can challenge Popeye’s claim is by insisting they adopted a fair hearing by notifying him of the case against him. At the early investigatory stages Brutus wrote to Popeye requesting for his submissions.[43] The contents of Brutus’s letter aren’t fully specified, but it can be suggested that he provided Popeye with relevant knowledge of the case, as Popeye later wrote back admitting the allegations. On this basis, the Harbour Authority can argue there was no need for Popeye to call for a witness, as he had already admitted the claims indicating that a fair process has been conducted. Furthermore, if the courts take the view that a response from the applicant wouldn’t have made a difference to their case; the provision of notice will not be deemed necessary allowing the public body’s original decision to stand. Cases like Lloyd [1978][44] show the limitation on natural justice, whereby even though the requirements may be met, the end result of the case would have been no different.
If Popeye’s claim fails then his license will remain revoked and he’ll be out of his boat business unless the authority overturns their decision. On the other hand, as it can be seen from above, a high standard of justice is required when the right to continue in one’s profession or employment is at stake. Due to this the courts may decide that Popeye is eligible to claim under natural justice as he was at risk of losing his business. If he is successful the remedies available to him include receiving damages. This aims to compensate for financial losses that may have been incurred during the period Popeye was not working due to the Harbour Authority’s investigations being conducted. Popeye can also obtain a quashing (certiorari) order which nullifies the Harbour Authority’s initial decision requiring them to give a new verdict in accordance with the recommendations of the court.

Bibliography
Case List

Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629.

Cooper v. Wandsworth Board of Works [1863] 143 All ER 414.
Council of Service Unions v. Minister for the Civil Service [1985] 1 AC 374.
Durayappah v. Fernando [1967] 2 AC 337.
Errington v. Minister of Health [1953] 1 KB 249.
Gaiman v. National Association for Mental Health [1970] 2 AER 362.
Glynn v Keele University (1972) QBD.
Lloyd v. McMahon [1987] 1 All ER 1118.
McInnes v. Onslow-fane [1978] 1 WLR 1520.
Nakkuda Ali v. Jayararatne [1951] AC 66.
Pett v. Greyhound Racing Association [1969] 1 QBD 125.
R (on the application of Shoesmith) v. OFSTED and others [2011] EWCA Civ. 642.
Re HK, an infant [1967] 2 QB 617.
Re Pergamon Press Ltd [1971] Ch. 388.
R v. Huntington District Council ex parte Cowan [1984] 1 All ER 58.
R v. North and East Devon Health Authority, ex parte Coughlan [1999] LGR 703.
Ridge v. Baldwin [1964] AC 40.
Russel v Duke of Norfolk [1949] 1 All ER 109.
R. (on the application of Birmingham and Solihull Taxi Association) v. Birmingham International Airport Ltd [2009] EWHC 1462.
R v. Barnsley Metropolitan Borough Council ex parte Hook [1976] 1 WLR 1052.
R v. Inland Revenue Commissioners ex parte Unilever PLC [1996] STC 681.
R v. Metropolitan Police Commissioner ex parte Parker [1953] 1 WLR 1150.

R v. Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251.
Schmidt v. Secretary of State for Home Affairs [1969] 1 All ER 904.
Wiseman v. Borneman [1971] AC 297.

Textbooks

Carroll A, Constitutional and Administrative law (2009), 5th Ed, Pearson Education Limited; Harlow.

Elliot M, Beatson, Matthews and Elliot's Administrative Law, Text and Materials (2005), 3rd Ed, Oxford University Press: New York.
Elliot M, Beatson, Matthews and Elliot's Administrative Law, Text and Materials (2011), 4th Ed, Oxford University Press: New York.
Fenwick H, Phillipson G, Text, Cases and Materials on Public Law and Human Rights (2011), 3rd Ed, Routledge: New York.
Loveland I, Constituitional Law, Administrative Law, And Human Rights; A Critical Introduction (2012), 6th Ed, Oxford University Press; Oxford.

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[1] Lord Bridge, Lloyd v. McMahon [1987] 1 All ER 1118 at 1161.
[2] Lord Reid, Ridge v. Baldwin [1964] AC 40.
[3] “Cases must be treated alike by the correct and consistent application of law. Without formal equality law becomes arbitrary and thus unpredictable and uncertain” Schonberg, Legitimate Expectations in Administrative Law (2000) Oxford via Fenwick H, Phillipson G, Text, Cases and Materials on Public Law and Human Rights (2011), 3rd Ed, Routledge, pg 180.
[4] Galligan D J, Procedural fairness; the frontiers of liability (Oxford 1994), volume 1.
[5] Fenwick H, Phillipson G, Text, Cases and Materials on Public Law and Human Rights (2011), 3rd Ed, Routledge, pg 180.
[6] Audi Alterem Partem – the other side must be heard.
[7] 'Nemo Iudex sua Causa' – no one shall be judge in her own cause/(rule against bias).
[8] [1863] 143 All ER 414.
[9] Errington v. Minister of Health [1935] 1 KB 249.
[10] Fenwick H, Phillipson G, Text, Cases and Materials on Public Law and Human Rights (2011), 3rd Ed, Routledge, pg 798.
[11] Nakkuda Ali v. Jayararatne [1951] AC 66.
[12]R v. Metropolitan Police Commissioner ex parte Parker [1953] 1 WLR 1150.
[13] Errington v. Minister of Health [1935] 1 KB 249.
[14]Ridge v. Baldwin [1964] AC 40.
[15] Wade H. W. R, Constitutional Fundamental (1980), 1st Ed, Steven and Sons Limited: London.
[16] Loveland I, Constitutional Law, Administrative Law, And Human Rights; A Critical Introduction (2012), 6th Ed, Oxford University Press, page 482.
[17] Tucker LJ in Russel v Duke of Norfolk [1949] 1 All ER 109 at 118.
[18] Ridge made it clear that it was not so much the type of decision being made, or the status of the person making it that was important so much as whether fairness demanded consultation.
[19] R v. Barnsley Metropolitan Borough Council ex parte Hook [1976] 1 WLR 1052.
[20] Lord Denning Ibid at 1056.
[21] R v. Barnsley Metropolitan Borough Council ex parte Hook [1976] 1 WLR 1052.
[22] (R. (on the application of Birmingham and Solihull Taxi Association) v. Birmingham International Airport Ltd [2009] EWHC 1462.
[23] Ridge v. Baldwin [1964] AC 40.
[24] See also: Re HK [1967] which introduced the phrase ‘act fairly’.
[25] Can either be procedural or substantive.
[26] Schmidt v. Secretary of State for Home Affairs [1969] 1 All ER 904.
[27] Lord Fraser, Council of Service Unions v. Minister for the Civil Service [1985] 1 AC 374.
[28] R v. North and East Devon Health Authority, ex parte Coughlan [1999] LGR 703.
[29] R v. Inland Revenue Commissioners ex parte Unilever PLC [1996] STC 681.
[30] Council of Service Unions v. Minister for the Civil Service [1985] 1 AC 374.
[31] Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629.
[32] Durayappah v. Fernando [1967] 2 AC 337.
[33] Ibid.
[34] Ridge v. Baldwin [1964] AC 40.
[35] Gaiman v. National Association for Mental Health [1970] 2 AER 362.
[36] R (on the application of Shoesmith) v. OFSTED and others [2011]) EWCA Civ. 642.
[37] R (on the application of Shoesmith) v. OFSTED and others [2011]) EWCA Civ. 642.
[38] Glynn v Keele University (1972) QBD.
[39] [1971] AC 297
[40] See also: Re Pergamon Press Ltd
[41] Lord Guest, Wiseman v. Borneman [1971] AC 297, “I see no reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect parties’ rights.”
[42] Lloyd v. McMahon [1987] 1 All ER 1118.
[43] See: R v. Huntington District Council ex parte Cowan [1984] 1 All ER 58.
[44] Ibid.