Adam Perry (University of Oxford – Faculty of Law) and Angelo Ryu (University of Surrey) have posted Fair Hearings: Accuracy First on SSRN. Here is the abstract:
There are two conflicting approaches to fair hearings in English law. One line of cases says that fairness or justice requires a hearing only when it stands to contribute to a more accurate overall decision. The other says that fairness requires a hearing independently of its contribution to an overall decision. Recently, many commentators have championed the second approach, usually based on an appeal to non-instrumental process values, such as respect and autonomy. Here we defend the first, accuracy-centred approach. Others who do so tend to deny that there are process values. Our strategy is different: we show that the existence of process values is consistent with an accuracy-centred approach.
Perry and Ryu cite my article Procedural Justice only in passing (note 54) and do not engage its central argument. Their discussion of participation considers two conceptions—participation as control over the decision and participation as communication to the decision-maker—and argues that neither supports a hearing that cannot make a difference to the outcome. But the Participatory Legitimacy Thesis is a third view, distinct from both: a right of participation is a condition of the legitimacy of adjudication that purports to bind with finality. The value of the right does not reduce to its effect on outcomes, because the party denied participation can object to the authority of the proceeding—“my case was not considered through no fault of mine”—whether or not her participation would have changed the result. For this reason, the accuracy-centred approach and the legitimacy-based account of participation are not competitors on the same axis: accuracy is the criterion of good outcomes, but participation is a condition of legitimate ones. The extensive development of this view appears in Part V of Procedural Justice.
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