On fairness, elephants and principle – Michael Rhimes

“The Way Forward:
All of the above has turned on a distinction between contextual and core minimum approaches. The claim is not that they approaches are oil and water. Many judgments toy with both. The separation rather serves as a useful point of reference for how a seemingly simple notion of fairness can be approached in different ways.
But even this cannot hide the cloudy grey that pervades this area. Sooner or later the Supreme Court is going to have to consider, and consider seriously, how the courts in this jurisdiction are to afford meaningful guarantees of fairness.
After all, more is at stake than mere elephant-spotting.”

UK Human Rights Blog

elephant-in-room

Procedural fairness is a bit like an elephant. It is difficult to define in abstract, but you know a fair procedure when you see one. So Lawton LJ put it in Maxwell v Department of Trade [1974] QB 523, 539

 The trouble is it seems that different courts have different ideas of “elephantness”. Since we know that fairness is a necessarily context-sensitive notion, this, in itself, does not seem to give rise to too much difficulty. But practical problems start to arise when, for example, the Court of Justice of the European Union (CJEU) starts to endorse a view of fairness that is binding on the UK courts, but at odds with the approach taken by the UK Supreme Court. Add the facts that a) the UK is required to take into account the case-law of the European Court of Human Rights (ECtHR), which seems to have a different…

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